Construction, Forestry, Maritime, Mining and Energy Union v Svitzer... [2023] FWCFB 259 | Case summary

[2023] FWCFB 259

Construction, Forestry, Maritime, Mining and Energy Union v Svitzer... [2023] FWCFB 259 | Case summary | Zoe

[1] This decision concerns three applications to appeal against a Decision of Deputy President Easton (Decision)[1], issued on 9 January 2023, determining disputes arising under the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 (the Agreement). The applications to appeal are made by the Construction, Forestry, Maritime, Mining and Energy Union - Maritime Union of Australia Division (MUA)[2], jointly by the Australian Institute of Marine and Power Engineers (AIMPE) and the Australian Maritime Officers' Union (AMOU)[3] (collectively the Unions) and Svitzer Australia Pty Limited (Svitzer).[4] The appeals, for which permission to appeal is required, are brought under s. 604 of the Fair Work Act 2009 (the Act).

[2] The background can be briefly stated. The Agreement applies to Svitzer, employees and trainees employed by Svitzer in relation to work performed on tugboats in or about 17 Ports throughout Australia,[5] and covers the Unions. Clause 15.1 of the Agreement provides that employees may be engaged in one of four categories of employment: permanent full-time; permanent part-time; for a specified period of time / task (referred to by the parties as fixed term employment); and casual. Clauses 15.2 and 15.3 respectively define permanent full-time and permanent part-time employment. Clause 15.4 defines employment for a specified period of time or task and provides that "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 a specified task". We will also refer to this category of employees as fixed term employees.

[3] The Agreement at clause 41.1 provides that there will be a set of Port Operating Procedures (POPs) in each Port. POPs must be signed by the Port Manager and Union delegates and are required to be reviewed annually. POPs detail subject matter set out in clause 41.2 of the Agreement. Other provisions in clause 41 deal with the process for making and changing POPs by agreement or with notice and for the resolution of disputes for changes that are not agreed. By virtue of clause 5.3.1, POPs are incorporated as a term of the Agreement for the port concerned and the Agreement prevails over applicable POPs, which have no effect to the extent of any inconsistency with the Agreement.

[4] The dispute before the Deputy President concerned POPs at the ports of Sydney, Newcastle, Western Port, Brisbane and Melbourne. Among other matters, the relevant POPs variously specify numbers of "permanent" or "full-time" crews or employees required to work the rosters at the ports. Some, but not all the POPs, refer to fixed term employees or crews. Other POPs are silent in relation to the engagement of fixed term employees. The Unions contend that references in POPs to "permanent" or "full-time" employees or crews mean permanent full-time or part-time employees as defined in clauses 15.2 and 15.3 of the Agreement and do not refer to fixed term employees defined in clause 15.4. The Unions also contend that Svitzer is required to maintain the numbers of employees or crews designated as permanent in the POPs by replacing employees in those positions who leave employment, with permanent employees. The Unions assert that instead Svitzer has filled these vacant positions with fixed term employees and that this is not permitted by the disputed POPs because fixed term employees are not permanent employees.

[5] Svitzer contended in the first instance proceedings that it has unfettered discretion under the Agreement to engage fixed term employees in any position at any Port and that provisions in POPs purporting to fetter that discretion engage clause 5.3.1 of the Agreement and are rendered of no effect on the basis of inconsistency with the Agreement.[6] Svitzer also contended at first instance that clause 15.4 allows fixed-term employees to form part of a broader category of permanent full-time or permanent part-time workers save that the fixed term employees are engaged for a limited period.[7]

[6] The Deputy President determined that although clause 15.1 is permissive and allows Svitzer to engage employees in any of the employment categories, the clause does not give the Company an unfettered right to choose the basis on which each employee is engaged and allows for the possibility that other provisions in the Agreement could impose fetters on Svitzer's choice. The Deputy President also found that POPs made under clause 41 of the Agreement can fetter Svitzer's discretion to engage employees from any category in clause 15.1 without being inconsistent with the Agreement and that it is permissible for POPs to specify that places or positions in a roster must be occupied or filled by certain types of employees. The Deputy President accepted Svitzer's argument that employment for a specified period of time / task as defined in clause 15.4 is a type of permanent employment for the purposes of the Agreement and determined that there are two kinds of full-time permanent employees described in clause 15: those who are engaged for a specified time and those who are not. Having made this finding, the Deputy President concluded that if the POPs at a particular Port do not specify which kind of permanent or full-time employee can be used to fill a particular roster, then Svitzer can engage a fixed term employee for this purpose. Applying this approach, the Deputy President found that the Sydney, Newcastle and Western Port POPs do not fetter Svitzer's discretion to engage full-time or part-time employees on fixed term contracts. In contrast, the Deputy President found that the Brisbane and Melbourne POPs, by specifically referring to categories of employment in clause 15, place a fetter on the number and types of employees that Svitzer can engage to fill rosters at those ports.

[7] The Unions' appeals assert errors on the part of the Deputy President in concluding that employees engaged for a specified period of time / task are permanent employees and that such employees can fill positions designated in POPs as "permanent". Svitzer's appeal maintains that the Deputy President's conclusion that some POPs fetter its discretion to fill vacancies or to otherwise employ fixed term employees at any Port, is erroneous and that any provision of a POPs purporting to fetter its discretion in this regard is of no effect based on inconsistency between the POPs and the Agreement.

[8] It is not in dispute, and we accept, that the appeals are authorised by the dispute resolution term in the Agreement and by s. 604 of the Act, but require permission. Following the lodgement of the appeals, Directions were issued requiring the Unions and Svitzer to file written outlines of submissions in relation to permission to appeal, merits of the appeals and permission to be legally represented pursuant to s. 596 of the Act and to file written submissions in response. A hearing was conducted at which the MUA was represented by Mr A Neal of counsel, the AIMPE and AMOU by Mr O Fagir of counsel and Svitzer by Mr I Neil SC instructed by Australian Business Lawyers & Advisors. We granted permission for the parties to be legally represented on the basis that we were satisfied that the matter involved complexity arising from the proper construction of the Agreement and its interactions with the POPs. We were also satisfied that the involvement of counsel would enable the matter to be dealt with more efficiently.

[18] In response to Svitzer's argument, the Deputy President stated that employees engaged for a specific period of time or task are permanent employees by virtue of clause 15.4, "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."[17] The Unions' argument was rejected by the Deputy President on the basis that reading into clause 15 their contended limitation was not warranted because matters such as "the appropriateness or legitimacy of using fixed-term employees" should be addressed through negotiation and review mechanism as provided for in clause 41 of the Agreement and if such a limitation had been intended by the parties, it would have been included in the Agreement or the POPs. In relation to whether the disputed POPs impinge on Svitzer's discretion to engage employees under clause 15, the Deputy President considered each of the disputed POPs and concluded, that the Sydney, Newcastle and Western Port POPs do not fetter Svitzer's discretion to engage employees in any category of employment, and so long as Svitzer engage the specified numbers of crews or employees at those ports, it open to Svitzer to engage employees on fixed term contracts.

[19] In relation to the Brisbane POPs, the Deputy President found that specific reference to permanent and fixed term employees meant that the framers were referring to two different types of employees and that the references to permanent employees were to employees who had ongoing employment and were not engaged for a specified time or task. On this basis, the Deputy President concluded that the most cohesive interpretation was that clauses specifying numbers of permanent employees did not include fixed term employees, while clauses referring to fixed term and casual employees referred to how such employees could be deployed. It was also relevant that the Brisbane POPs referred to "employees" rather than "crews". The effect was that fixed term employees could only be used to "supplement" permanent employees by providing "relief as necessary" or to meet operational requirements (including trials) as specified in the clause and that the Brisbane POPs placed a fetter on Svitzer by limiting the circumstances in which fixed term employees could be deployed. In relation to the Melbourne POPs, the Deputy President found that a definition of permanent full-time and permanent part-time crews as being employed under clauses 15.2 and 15.3 of the Agreement respectively, was a clear indication that those crews could not be staffed by employees engaged for a fixed term under clause 15.4 of the Agreement and that had this been intended, the Melbourne POPs would have referred to clause 15.4.

[20] Having considered each of the disputed POPs, the Deputy President summarised his findings as follows:

[26] Section 604 of the Act provides that a person aggrieved by a decision of the Commission may appeal the decision with the permission of the Commission. This provision operates subject to the terms of an instrument otherwise providing the basis for the Commission to determine a matter by arbitration under s.739 of the Act. As we have noted, this is not in dispute in the present case. The dispute settlement term in the Agreement does not establish an independent right of appeal and an appeal lies under s. 604(1) only with permission.

[27] The Decision against which the appeals have been brought concerns the proper construction of the Agreement. The substantive part of the Decision did not involve the exercise of discretion. The answer given by the Member at first instance to the proper construction of the Agreement is either correct or incorrect. In this regard the appeals concerning the proper construction of the Agreement are to be determined by the "correctness standard". As the High Court explained in Minister for Immigration and Border Protection v SZVFW[18], the legal criterion applied to reach the conclusion demands a unique outcome,[19] and there is only one right answer[20].

[28] By virtue of s. 604(2), without limiting when permission to appeal may be granted, the FWC must grant permission if satisfied that it is in the public interest to do so. Permission to appeal may also be granted where there is an arguable case of appealable error, and the decision is attended with sufficient doubt to warrant its reconsideration.[21]

[29] We are satisfied that permission to appeal should be granted on the basis that the grounds of appeal advanced by the Unions raise an arguable case of appealable error. We also accept Svitzer's contention that the appeal raises issues of construction of an important enterprise agreement applying in a sector that has considerable significance for the Australian economy. In this regard, the fact that POPs may be varied during the term of the Agreement, that disputes in relation to variations may be raised under the dispute settling provision and that POPs may continue to operate in replacement iterations of the Agreement, can give rise to ongoing disputation.

[30] The MUA submitted that a fixed-term employee could not be considered "permanent" because their employment comes to an end upon the effluxion of the period of time specified under a contract,[22] and that the Deputy President's conclusions that employees employed for a specified period of time are permanent employees and engaged as such under clause 15.4 of the Agreement, are erroneous. In this respect, the text of clause 15 is clear. There are four categories of employment under the Agreement - permanent full-time, permanent part-time, specified period of time / task and casual. Clause 15.4.1 makes clear that whilst a fixed-term employee may "work on a permanent full-time or permanent part-time basis", the fixed-term employee is "engaged for a specified period of time or specified task". That the engagement of the employee was for a specified period of time and not on a permanent basis, was said to be reflected in Svitzer's fixed-term employment contracts tendered into evidence at first instance.[23] If the Deputy President's characterisation of fixed-term employment as a sub-category of permanent employment under the Agreement is correct, clause 15.4 would have no work to do.

[31] Further support for the interpretation advanced by the MUA, was said to be found in key clauses in the Agreement which distinguish between permanent employees and employees employed for a specified period of time. In this regard, reference was made to clauses 21 (Redundancy), 42 (Leave) and 24 (Salaries) and these clauses were said to distinguish between the four categories of employees.

[32] That other terms and conditions of the Agreement did not distinguish between permanent and fixed-term employees was, in the MUA's view, wholly unsurprising. Fixed-term employees necessarily work on either a full-time or part-time basis and are "paid as" such. Employees engaged for a specified period of time enjoy the same benefits as permanent full-time or permanent part-time employees because, as was Svitzer's evidence below, fixed-term employees are typically engaged by Svitzer to fill temporary vacancies in rostered positions held by incumbent permanent full-time or permanent part-time employees.[24]

[33] The MUA further submitted that in finding that fixed-term employment was a "variant" of permanent employment under the Agreement, the Deputy President failed to distinguish between the basis of engagement of an employee for a specified period of time and the terms and conditions of employment provided to fixed-term employees by the Agreement and thereby incorrectly construed clause 15. The MUA stated that just as the Deputy President "assumed" the framers of the POPs were of a "practical bent of mind",[25] so too were the drafters of clause 15 of the Agreement. In this respect, the MUA referred to the observations of French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union[26], as follows:

[36] In relation to grounds 5 and 6, the MUA submitted that further support for the primacy of permanent employment under the Agreement, not including fixed-term employees, is found in clause 41.2.1(iv) which makes clear that "permanent full-time employees are the main source of crewing the port roster and permanent part-time employees supplement the roster". So much appears to have been recognised by the Deputy President at paragraphs [99] and [100] of the decision, where the Deputy President's reasoning makes good the MUA's contended construction of the disputed POPs. When the POPs use the terms "permanent" or "full-time" [28] those terms do not mean employees or crew employed for a specified period of time / task. The Deputy President, having recognised that the POPs can place a fetter on the engagement of employees or crew for a specified period of time,[29] and acknowledging the intention of the POPs to impose such a fetter by using the terms "permanent" and/or "full-time", erred by going on to find that because the Agreement classified fixed-term employees as permanent employees, fixed-term employees could be engaged to fill vacancies in "_permanen_t" or "full-time" rostered positions covered by the POPs.[30]

[37] Even if the Deputy President was correct in his conclusions that clause 15 allowed for the engagement of employees on fixed-term contracts as a "variant" of permanent employment and that Svitzer could count those employees as full-time or part-time permanent employees, it was the intention of the drafters of the contested POPs to restrict or prohibit such engagement, and this was accepted by the Deputy President at paragraph [100]. Consistent with the Deputy President's reasoning at paragraphs [99] and [100] of the Decision, the MUA contends that the Deputy President's construction of the term "permanent employees" in the Brisbane POPs is equally applicable to the terms "permanent" and/or "full-time" in all the contested POPs.[31]

[38] Further, the MUA argued that contrary to the Decision, there is no need for the POPSs to specify "which kind of permanent employee or which kind of full-time employee can be used to fill a particular roster" because it was "reasonably clear" to the Deputy President that the POPs (and on the MUA's case, clause 15 of the Agreement) do not include fixed-term employees in the "permanent full-time" category of employment.

[45] In relation to ground 1 of Svitzer's appeal, the MUA submitted that the Agreement clearly contains an indication that the discretion in clause 15.1.1 is qualified. It was found by the Deputy President that there is an express fetter in clause 15 itself relating to part-time conversion. Clause 41.2.1(ii) which requires the rosters to include "the number of crews on duty and on leave required to man the roster" was also said to contemplate a fetter on the discretion in clause 15.1.1.

[46] In addition, the MUA submitted that it would not be possible for Svitzer to specify the subject matters referenced in clause 41.2.1(ii) in a roster in a POPs without mentioning categories of employment. In this respect, the MUA referred to clause 15.2.1, clause 41.2.1(iii) which requires rosters in a POPs to set out details in respect of "Off-duty periods for permanent full-time employees" and clause 41.2.1(iv) which requires rosters in a POPs to set out details in respect of "Off-duty periods for permanent part-time employees" and clause 41.2.7 which requires the rosters in a POPs to set out details in respect of "Relief arrangements to be utilised in the Port and casual usage" including an order of pick for relief as between "permanent part-time employees", "casual employees" and "permanent full-time employees on rostered leave".

[47] With respect to the Melbourne and Brisbane POPs, the MUA submitted that they do not remove the discretion in clause 15 entirely or disentitle Svitzer to its exercise. Rather, the Unions, Svitzer and its employees have agreed in those POPs the complement of rostered permanent full-time, permanent part-time, fixed term/ task and casual employees which may be engaged in accordance with the categories of employment in clause 15.1, as required by clause 41.2. In so doing, Svitzer has exercised its discretion, which can then be varied by agreement in accordance with clause 41.4. This outcome is available under the Agreement with respect to the POPs because the Agreement allows for the agreed POPs to fetter the discretion in clause 15.1.1. For these reasons, the limitations on fixed-term engagements in the Melbourne and Brisbane POPs are not inconsistent with clause 15.1.1 and as such, clause 5.3.1 is not engaged.

[48] In relation to grounds 2 and 3 of Svitzer's appeal, the MUA submitted that, far from being superfluous to the purpose of a roster under the Agreement, the employment category of a rostered employee is required by the terms of clause 41.2 to be included in a roster in a POPs, including clause 41.2.1(i) which requires towage operations to be carried out 24 hours per day on every day of the year. Consistent with that construction of clause 41.2, all the disputed POPs contain rosters specifying employment categories of rostered crews either without, or in addition to, employees names, crewing numbers and which crew are rostered to work and when.

[49] In oral submissions, Mr Neal for the MUA emphasised that the notion that somehow fixed term employment fits within the category of permanent employment is an oxymoron. Reference was also made to the findings of the Deputy President at paragraphs [94] and [96] that fixed term employees receive all of the entitlements of permanent employees because they are permanent employees and that fixed term employment is ongoing during its term, notwithstanding that it has an end date. These findings were submitted to be incorrect and contrasted with the correct finding in paragraph [123] that the Brisbane POPs refer to permanent employees as employees who have ongoing employment and who are not engaged for a specified time or task. This was said to be exactly the distinction that is made in clause 15.1.1. Reference was also made to the use of the terms - permanent full-time and permanent part-time employees - in the Melbourne POPs which was said to be a distinction based on the use of the words "permanent" and "fixed term" in opposition to each other, which is the way they are used in clause 15.1.1.

[51] The AIMPE and AMOU submitted that the Deputy President's conclusion that fixed-term employees are permanent employees was wrong, for the following reasons. First, the word "permanent" means "lasting, intended to last or function indefinitely".[41] As a matter of plain language, a fixed term employee is not permanent. The proposition that a fixed term of employment is "permanent" is an oxymoron. Permanent employment and fixed term employment are alternatives.

[52] Second, to the extent that there is any doubt about that general proposition, it is dispelled by the language of the Agreement. Clause 15 of the Agreement deals with "Categories of Employment and Engagement" in language that is plain and intractable. It provides that an employee may be engaged in one of four categories listed and linked by "or", a conjunction used to link alternatives. Clause 15.1 cannot sensibly be read as establishing anything other than four alternative modes of engagement and the words of that clause are, without more, a sufficient answer to Svitzer's contention that fixed term employment is a sub-category of permanent full-time employment. However, the Deputy President did not address this issue at all. Incidentally, it may be noted that clause 15.2 uses the phrase "Full-time employment" as shorthand for "permanent full-time employment" suggesting that the phrases "full-time" and "permanent" and "permanent full-time" are, in the Svitzer idiom, interchangeable.

[53] Third, clause 15.4 of the Agreement does not require any different result. The AIMPE and AMOU observed that the effect of this clause, in the Deputy President's view (at paragraphs [94] - [96] of the Decision), was to provide that fixed-term employees are permanent employees. The AIMPE and AMOU expressed the view that the chain of reasoning of the passage is not entirely clear, and the proposition that fixed term employment is "ongoing... during the term of the employment" is perplexing.

[54] Clause 15.4 of the Agreement does not qualify or alter clause 15.1. Rather, it deals with a different subject. Clause 15.1 is concerned with the mode of engagement of employees. Clause 15.4 is concerned with the employment conditions of fixed term employees. The effect of the prescription that a fixed term employee is one "who works on either a permanent full-time or permanent part-time basis" is that fixed term employees, during their engagement, "work" on the same terms and conditions as either permanent full-time or permanent part-time employees. It does not mean that the concept of fixed term employment is redefined for the purpose of the POPs. This view is said to be not only the natural reading of the language of the two provisions but has the additional advantage of allowing clauses 15.1 and 15.4 to be read harmoniously as part of a coherent whole, giving effect and context to each. Further, other terms of the Agreement confirm that this is the correct view. For example, clause 24.3 provides that fixed term employees "will be paid as a permanent full-time employee or as a permanent part-time employee, depending on their engagement". This clause reiterates that fixed term employees are not permanent employees but are treated as such, for the purposes of most conditions of employment.

[55] Fourth, the Agreement specifies in cl 41.2.1(iv) that "permanent full-time employees are the main source of crewing the port roster and permanent part-time employees supplement the roster." That clause is characterised by the AIMPE and AMOU as an important statement of principle which is consistent with a view that fixed-term employees are to be employed only as an exception and is incompatible with Svitzer's view that it is free to use fixed term employees at will, for any reason or no reason at all.

[56] Fifth, the Deputy President found at paragraphs [99] - [100], as a matter of fact, that the parties' mutual intention and contemplation was that rosters would be staffed by permanent full-time employees unless the POPs specified to the contrary. Sixth, the terms of the POPs themselves reinforce the view that fixed term employment on the one hand, and permanent or full-time employment on the other, are alternatives. Reference was specifically made to clause 1 of the Sydney POPs which is said to plainly distinguishes between the 15 full-time crews (dealt with in the first paragraph) and the two fixed term crews (dealt with in the second paragraph). It is also plain that clause 1, which permits the use of two fixed term crews, was directed to a particular purpose[42] and subject to specific requirements and conditions.

[57] On the view advanced by Svitzer and accepted by the Deputy President, the two paragraphs in clause 1 deal with the same thing, and the provisions dealing with specific requirements of fixed term contracts, are otiose. On that view, it would not be necessary to negotiate or include the specific requirements and conditions relating to fixed term contracts, because it would always be open to Svitzer to utilise fixed term rather than full-time crews. The Western Port and Newcastle POPs were said to be even clearer in referring to "permanent full-time" and "permanents" respectively. As the Deputy President accepted, the Brisbane and Melbourne POPs are perfectly clear on the topic. The terms of the POPs, therefore, underline the facts that the parties in drafting the POPs carefully distinguished between different modes of engagement.

[58] The AIMPE and AMOU submitted that this Full Bench should rehear the matter and upon a rehearing, determine that:

references to "permanent full-time", "permanent part-time", "full-time", "part-time" or "permanent" crews or employees in the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 and associated Port Operating Procedures do not encompass employees engaged under clause 15.4 of the Agreement for a fixed term or fixed task; and

the current Port Operating Procedures for the ports of Sydney, Newcastle, Melbourne, Brisbane and Western Port require Svitzer to replace a departing permanent full-time or permanent part-time employee with another permanent full-time or permanent part-time employee.

[59] In relation to ground 1 of Svitzer's appeal, the AIMPE and AMOU submitted that there are three errors in relation to Svitzer's analysis. The first error was said to be Svitzer's assumption that clause 15.1.1 confers a discretion on Svitzer, because it does not. In this respect, it was submitted that Svitzer is, prima facie, entitled to engage employees on whatever basis it chooses, and without necessarily adopting any particular label to describe the mode of engagement. It is not necessary that an enterprise agreement grants Svitzer a "discretion" to hire workers in one mode of engagement or another. Svitzer's authority to offer employment on such terms as it chooses, is anterior to the Agreement.

[60] Rather than granting Svitzer some right, clause 15.1 in fact confines the scope of Svitzer's prima facie right to offer such terms and conditions as it may choose, in the following manner:

permitting Svitzer to engage employees only in one of four modes;

permitting Svitzer to engage employees only "in accordance with clauses 15.2 to 15.6";

requiring that Svitzer, at the point of engagement, issue written advice as to specified matters;

setting out explicit requirements in respect of each of mode of engagement in clauses 15.2-15.6 (for example, cl 15.3.4 requires that permanent part-time employees are converted to full-time under certain conditions); and

imposing further requirements which are implicit or inherent in the labels "permanent full-time", "permanent part-time", "casual" and "fixed term".

[61] Further restrictions on Svitzer's prima facie freedom to offer employment on any terms as it might wish, also appear in a series of other provisions of the Agreement, for example, clauses 16 and 24. Clause 16 requires that employees are engaged on a particular basis and following a particular process and clause 24 requires payment of specified salaries. The terms of the POPs dealing with minimum numbers of employees in each category of employment in each port are no different. They are, like the terms of the Agreement proper, restrictions on what would otherwise be Svitzer's discretion at large. It follows that there is no inconsistency between the relevant terms of POPs and clause 15.1.1.

[62] The second error is Svitzer's contention that there is potential inconsistency between clause 15.1.1 and the impugned provisions of the POPs. Even if clause 15.1.1 were viewed as a grant rather than limitation of discretion, no inconsistency would arise. Clause 15.1.1 on the one hand, and various POP provisions on the other, deal with different subject matters. Clause 15.1.1. deals with types of engagement. The POPs deal with the minimum number of employees of each type required to be employed. One does not qualify the other; they are separate.

[63] The third error is Svitzer's assumption that inconsistency is demonstrated by showing that the terms of the POPs qualify clause 15.1.1. Even if (which is not accepted) the terms of the POPs qualified clause 15.1.1, that would not demonstrate inconsistency.[43] Where there is potential inconsistency in the terms of a single instrument, the tribunal should seek to reconcile the inconsistency and, as far as reasonably possible, construe the terms so as to give effect to both. [44] In this regard, the AIMPE and AMOU submitted that clause 15.1.1 requires Svitzer to engage employees in one of four modes. The POPs may limit the maximum number of employees of a particular kind in a particular port. There is no inconsistency. In addition, it was submitted that it is commonplace that various clauses of industrial instruments deal with similar or overlapping subject matters or that one clause qualifies another. It is doubtful in this case whether clause 15.1.1 and the POPs deal with the same subject matter to qualify one another, but even if they did, no inconsistency would thereby arise.

[64] In relation to grounds 2 and 3 of Svitzer's appeal, given that each set of POPs currently in place deals with the very subject matter of prescribing the numbers and types of employees engaged in a particular port, Svitzer's argument is in effect, that the POPs which it has negotiated and enforced for some years are invalid and ineffective. That this argument was put, manifests surprisingly frank industrial cynicism, but in any event, the argument is wrong for the following reasons.

[65] First, clause 41.2 does not delimit the subject matter of the POPs. Clauses 41.2.1 - 41.2.8 stipulates a broad range of subject matters. On its ordinary reading, clause 41.2 requires that the POPs deal with the matters set out in 41.2.1 - 41.2.8, but does not limit them to those matters. The correct position was said to have been identified in AMOU v Svitzer Australia Pty Ltd[45] where the Commission explained that "[the] provisions of subclause 41.2.1 are intended to provide a foundation for guidance in the formation of the POPs...".

[66] That the parties understood them in this way is manifest in the fact that the POPs negotiated by the parties deal with various subject matter in addition to the matters in 41.2.1-41.2.8. Second, and even if clause 41.2 was an exhaustive statement of the matters able to be dealt with by the POPs, crew compositions is a subject falling within the enumerated matters, given that the POPs deal with "port rosters", "casual usage", "relief arrangements" and "other issues of an operational nature, specific to the Port", which include the composition of the workforce in each port.

[67] Further, the AIMPE and AMOU submitted that the intention of the parties that workforce composition falls within the aegis of port rosters is apparent from the text of the Agreement itself, for example, in clauses 41.2.1(iv), 41.2.1(ii) and 15.2.1. The POPs provisions dealing with rosters commonly identify the category of crew allocated to particular work. The employment category of a crew is also commonly addressed in provisions dealing with relief arrangements and elsewhere. The rosters also often identify individual crew members, necessarily thereby prescribing certain numbers of full-time, part-time, casual and fixed-term employees. The POPs demonstrate that the terms "Roster" and "Crewing Complement" are interchangeable in the Svitzer context and typically deal with both work allocation and the number and type of crews to whom the work is allocated. As such, it was submitted that staffing, including the complement of permanent full-time, permanent part-time, fixed term / fixed task and casual employees, is a matter that falls squarely within the contemplation of clause 41.2.

[68] In oral submissions in the appeal, Mr Fagir for the AIMPE and AMOU, pointed to several contextual matters and implications of the position in which it is said that Svitzer has placed itself, as follows. First, it was submitted that the catalyst for the dispute is Svitzer's unilateral decision to begin replacing permanent employees with fixed term employees and that this is the plain effect of the evidence.[46] Second, the development was said to have occurred in the context where each of the sets of POPs deals - albeit in different ways - with the question of minimum numbers of employees in particular categories.[47] Most or all POPs deal with other matters that do not, on the face of it, fall squarely within the parameters of enumerated items in clause 41.2.1. Examples of such matters are the provision of e-tags in the Newcastle POPs and the Brisbane POPs which requires Svitzer to supply tea and Milo. Third, the POPs - or most of them - do not prevent Svitzer from hiring fixed term employees and specify minimum numbers of employees in particular categories.[48] Fourth, the POPs are not set in stone, but may be altered by either party giving notice, subject to the right of the counterparty to apply to the Commission to prevent the change.[49] Fifth, the Agreement with which the current matter is concerned, was negotiated and made, in the context of existing POPs in very similar or identical terms, in the context of identical or very similar language in a previous enterprise agreement. On one view, Svitzer should have taken this step in the present case.

[69] In relation to Svitzer's argument about clause 41.2, it was submitted that properly read, the provision requires that the POPs deal with at least those matters, but without preventing the POPs from dealing with other matters. The matters are intended to provide a foundation for guidance, rather than stating that these are the matters to be dealt with[50]. That these matters are the starting point for the procedures that are to be developed makes sense in the context of the Agreement including no daily span of hours and no daily, weekly, or monthly maximum ordinary hours. There are maximum weekly hours of 91, but setting aside ordinary hours, there are no maximum working hours. There are no shift loadings, weekend penalties, public holiday penalties or penalties for long shifts, unless either 12 or 14 hours are worked. It was submitted that the Agreement provides a bare bones framework, with all these critically important matters to be dealt with in the POPs. In this regard, the function of clause 41.2 is to ensure that whatever procedure is developed deals with at least those matters, and any other matters the parties agree.

[70] In the alternative, it was submitted that if the POPs can only deal with the matters in clause 41.2, rosters in the context of Svitzer's operations are complex and set out the whole framework for hours of work and terms and conditions beyond salaries, including minimum numbers of crews and types of employment, which are components of a scheme that ensures people work in a way that meets Svitzer's needs but also ensures that there is sufficient capacity for leave to be taken and emergency work to be covered. In relation to Svitzer's argument concerning inconsistency, it was submitted that the Agreement does not authorise Svitzer to hire employees. Instead, clause 15.1.1 limits Svitzer's otherwise general discretion to hire employees on any terms and conditions it chooses, by requiring that employees are engaged in one of the categories in clause 15.1.1 and other prescribed rules in the Agreement. That awards and agreements are a series of parameters hedging the employer's rights to offer employment on whatever terms it wishes, was said to be utterly conventional. It was also submitted that even if clause 15.1.1 is a grant of a licence to hire, the POPs do not stop that from occurring.

[71] A further relevant consideration is that an agreement is read as a whole and as far as possible, giving effect to all its provisions. In the present case, the position is particularly clear because the parties have incorporated the POPs as terms of the Agreement and puts beyond doubt that one instrument is being construed. It was emphasised that the authorities relating to inconsistency referred to by Svitzer deal with conflict between different instruments. The approach to internal inconsistency is that it is to be resolved as far as possible, by giving each of the potentially conflicting provisions work to do, and the conventional way to do this is by taking one provision as qualifying the other. Another way of looking at internal inconsistency is to adopt a working assumption that when parties negotiate an agreement, they do so for a reason, so that it all operates in a harmonious and sensible way. In any event the direct inconsistency mode of analysis sits awkwardly in the present case where there are not competing sources of obligations with one entitled to prevail.

[72] In conclusion, it was submitted that it is intractable that the employment categories in clause 15.1.1 are alternatives and it is not possible as a matter of basic English language to say that which is for a fixed term, is permanent. Clause 15.4 does not deem fixed term employment to be permanent, but simply provides that while fixed term employees are working, they work on the same terms and conditions as permanent employees.

[77] The correct construction of clause 15.1.1 is that it confers an unqualified - that is, unfettered - discretion on Svitzer to engage employees in any one of the four identified employment categories. In this regard, Svitzer said that the contrary conclusion at paragraph [68] of the Decision and the first sentence of paragraph [74], is incorrect. The heart of the error was said to be the first sentence in [70] and the second sentence in [74], which invert the correct analysis. It was submitted that what is determinative of the correct construction of clause 15.1.1 is that (a) the word "may", used without qualification, indicates an unfettered discretion[52], and (b) the text of clause 15.1.1 contains no indication that the discretion is qualified or fettered in any way. This construction of clause 15.1.1 is said to be reinforced by its context. Clauses 15.2 to 15.5 deal comprehensively with each of the available employment categories. That being so, clause 15.1.1 would have no meaningful independent work to do[53] unless it is construed in the manner advanced.

[78] Svitzer submitted that given that the Melbourne and Brisbane POPs qualify, or fetter, the unqualified and unfettered discretion conferred by clause 15.1.1, it necessarily follows that the POPs are inconsistent with clause 15.1.1, and to that extent, the POPs fall within clause 5.3.1, and are rendered of no effect. The boundaries of the operation of clause 5.3.1 are delineated by the extent of the inconsistency, being the extent to which the POPs fetter the discretion.

[79] The concept of inconsistency adopted by Svitzer was said to follow the ordinary and natural meaning of inconsistency: "Without agreement or harmony...not agreeing in substance, spirit, or form; not in keeping; not consonant or in accordance; at variance, discordant, incompatible, incongruous"[54], and "lacking agreement, as one thing with another, or two or more things in relation to each other; at variance".[55] The concept was said to be similar to the concept of direct inconsistency as it is used in analogous legal contexts involving:

• Two laws making "contradictory provision on the same topic";[56]

• One instrument or law imposing an obligation greater than that of another with respect to the same subject matter;[57]

• Commonwealth law conferring an express permission to engage a category of person and a State law prohibiting such engagement;[58]

• Where a Federal award sets a rate of pay, any subsequent State instrument that requires a different rate of pay to be paid is directly inconsistent because it would be an "interference" of the adjustment of industrial relations made by the Federal award."[59]

[80] With reference to paragraphs [80], [83] and [88] of the Decision, Svitzer submitted that the Deputy President erred in his construction of clauses 41 and 15.1 for the following reasons:

First, clause 41.2.1(ii) does not require that the "number of crews on duty and on leave" be included in the POPs. It merely requires that "rosters" should include the number of crews on duty and on leave. Moreover, clause 41.2.1 does not provide that the rosters themselves should be included in the POPs.

Second, even if (contrary to the foregoing) the POPs were required by clause 41.2.1(ii) to include details of work days, component of predictable leave days, number of crews on duty and leave required to man the roster there is no reference in clause 41.2.1(ii) to the POPs including types/categories of employment in the POPs/roster. There is no reference to categories of employment in clause 41.2.1(ii). It would be entirely possible for Svitzer to specify the subject matters referenced in clause 41.2.1(ii) in the POPs or a roster without mentioning categories of employment. Accordingly, there is no permission given, nor contemplation, in clause 41.2.1 that the POPs or rosters would override the discretion conferred in clause 15.1.

Third, while it is acknowledged that provisions of an enterprise agreement might sometimes overlap and limit other provisions in the same agreement (see [69], [84] and [86] of the Decision), this type of outcome is not available under the Agreement with respect to the POPs because of the operation of clause 5.3.1.

Fourth, the Deputy President's characterisation of the POPs "fettering" the discretion conferred by clause 15.1 has underplayed the extent of the inconsistency between the POPs and clause 15.1. Clause 15.1.1 operates to expressly authorise Svitzer to choose the manner in which it engages employees. The POPs operate to relevantly remove the discretion entirely, or to disentitle Svitzer to its exercise.

[81] For these reasons, Svitzer submitted that the correct conclusion is that on the proper construction of the Agreement, the Deputy President should have found that the limitations on the use of fixed-term engagements in the Melbourne and Brisbane POPs were inconsistent with clause 15.1.1, and thus, by the operation of clause 5.3.1, of no effect to that extent.

[82] In oral submissions, Mr I Neil SC for Svitzer reiterated that the discretion that clause 15.1.1 confers is an unqualified, unfettered discretion, to employ employees in any one of the four identified employment categories, but only in accordance with clauses 15.2 to 15.6. It was also submitted that it is not permissible as a process of construction to imply or import a term into an enterprise agreement and the present case turns on the express language of the relevant provisions. In response to questions from the Full Bench, it was submitted that the term "may" in clause 15.1 means that the clause operates permissively and that within that permission or discretion, there is no fetter. If there is to be a fetter, it must come from a term of the Agreement other than clause 15.1.1 but cannot come from a POP. It was accepted that the result of Svitzer's contention is that the parties to POPs may solemnly make agreements that have no effect, because of the operation of clause 5.3.1. It was also accepted that this may not be consonant with the will of those who made the POPs. However, it would be entirely consonant with the objectively manifested intention of the parties to the enterprise agreement, who expressly turned their minds to the problem of inconsistency and the problem that would be posed if after making the Agreement, POPs were made that were inconsistent with the terms of the Agreement. In this regard, it was submitted that the parties resolved the problem of potential inconsistency by giving primacy to the Agreement and saying that inconsistent POPs would have no effect. [60]

[83] In response to the proposition that the POPs provide for a process of change, it was submitted that it was not a process allowing for unilateral change. However, Counsel accepted the proposition that Svitzer's construction would allow the Company to employ casual employees (subject to any limitation in the Agreement) instead of permanent full-time employees and submitted that this would involve the exercise of a right, as a POP providing to the contrary would have no effect.[61]

[84] In relation to appeal grounds 2 and 3, Svitzer submitted that the Deputy President correctly identified the contextual matters in (d) and (e) at paragraph [64] that there is a boundary of matters that may be dealt with by the POPs, and other "core matters" that are "quarantined" to the EA: that is, clause 41.2 operates to define the outer limit of the subject matters that can be dealt with by the POPs. In the proceedings at first instance, Svitzer submitted that the Agreement did not permit POPs to include terms prescribing the engagement status of employees in a port.[62] The terms of POPs that cover this subject matter are accordingly inconsistent with the Agreement and should have no effect. While this contention was identified by the Deputy President at paragraph [53], it was not otherwise addressed or resolved.

[85] Svitzer's primary submission in relation to appeal grounds 2 and 3 is that this error had the consequence that the Deputy President erroneously relied on provisions in the POPs that have no effect. In the alternative, Svitzer submitted that it was erroneously held at paragraphs [83] and [84] that clause 41.2.1(ii) permits the POPs to include terms about types of employment or that the clause permits rosters which deal with types of employment to be included in the POPs. The correct position, in Svitzer's view, is that 41.2(ii) does not provide that the types of employment or the numbers of crews are to be included in the POPs, nor that rosters are to be included in the POPs.

[86] Moreover, it was submitted that even if the Agreement mandated that rosters were to be included in the POPs (which it does not), there is no reason why the roster would need to specify a person's employment type. The Decision appears to assume that a roster must by necessity include someone's employment type: see paragraph [83]. Such an assumption is incorrect. Rosters (including the rosters in evidence[63]) typically include employee names, crewing numbers and identify which crew are rostered to work and when. However, there would ordinarily be no reason why a roster (which specifies who is to present to work at what times) would need to address a person's employment category. It is superfluous to the purpose of a roster and the Agreement does not contemplate crew numbers being matters to be included in the POPs.

[87] Svitzer's contention is therefore that the inclusion of references to employment categories in the POPs is not a matter permitted to be included in POPs, and to that extent the POPs have no effect or, alternatively, are not incorporated in the Agreement (and therefore are not capable of being subject of the Agreement's dispute resolution provisions) because they do not constitute authorised terms of a POPs.

[88] In relation to the Deputy President's construction of clause 41 of the Agreement, Svitzer reiterated in its oral submissions that in paragraph [83] of the Decision, the Deputy President linked the fettering content of the POPs to the Agreement. The link turned on the Deputy President's construction of clause 41.2.1(ii) set out in that paragraph, to the effect that the clause creates 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 on Svitzer's discretion to engage a certain number of employees of a particular type. This paragraph was said to be the link between the incorrect construction of clause 41 and the conclusion in paragraph [88] that the POPs can be an agreed potential fetter upon clause 15.1 without the resulting POPs being inconsistent with a term of the Agreement. It was reiterated that these holdings were incorrect because clause 41.2.1(ii) does not require that the number of crew on duty and on leave be included in the POPs but merely authorises that POPs may include details about the subject matter of clause 41.2.1(ii), which includes that, "Rosters will, as far as practicable" contain content which does not include categories of employment of employees in the roster. This content is not expressly required and nor is it necessary, given that it would be entirely possible to create a roster without mentioning categories of employment. [64]

[89] Accordingly, if one is looking for the location or source of authority for a fetter the width of clause 15.1.1 in the Agreement, then contrary to the approach of the Deputy President, it is not clause 41.2.1(ii), which does not permit nor contemplate that the POPs or the roster could override or intrude upon clause 15.1.1 at all. Svitzer also pointed to its submissions at first instance, that clause 41.2 of the Agreement did not permit POPs to contain provisions proscribing the employment status or categories of employees in a particular port and that the terms of any POP that purported to do so, was not authorised by clause 41.2. Svitzer submitted that while the Deputy President identified this submission in his decision[65], he did not otherwise deal with or resolve this matter.[66]

[90] In response to Unions' appeals, Svitzer stated that no party had submitted at first instance that words and concepts used in the relevant POPs should be given a different meaning than the same words and concepts have under the Agreement, and every party appeared to accept that the Agreement provides the context against which the POPs should be construed. In relation to the Unions' contentions relating to clauses 15.1.1 and 15.4.1, Svitzer submitted that an essential premise of the Unions' appeals is that "permanent" employment must be "lasting" or "intended to function indefinitely". However, Svitzer said that no employment inures indefinitely and the Deputy President correctly rejected that premise at paragraph [95]. Svitzer maintains that the Agreement treats fixed-term employment as a species of permanent employment.

[91] The second essential premise of the Unions' appeals is the contention that each of the four employment categories identified in clause 15.1.1 are exclusive of every other category, such that relevantly an employee who is "engaged for a specified period of time" cannot also be a "permanent" full-time or part-time employee. In this regard, Svitzer's submitted that there are two textual, and three contextual, reasons why that contention is incorrect, such that the Unions' appeals fail at the outset.

[92] The textual reason is that the text of clause 15.1.1 authorises employment in "one of" the four identified employment categories but does not expressly state or require that employment in every one of those categories excludes employment in every other. Nor is it possible to imply exclusivity[67]. That said, Svitzer observed that "casual employment" necessarily excludes "permanent" employment, but this was said to be because the ordinary meanings of "casual" and "permanent" are necessarily exclusive of one another. Whereas "permanent" and fixed-term employment of the kind with which this dispute is concerned, are not. Further, Svitzer said that the text of clause 15.1.1 expressly refers to and incorporates ("in accordance with") clause 15.4.1 such that everything that precedes that references is to be read subject to, relevantly, clause 15.4.1. The text of clause 15.4.1 is intractable: "An employee engaged for a specified period of time or a specified task is an employee who works on either a permanent full-time basis or permanent part-time basis, but is engaged for a specified period of time or specified task".

[93] The Unions' argument that clause 15.4.1 should be read as a deeming provision for the limited purpose of regulating employment conditions, is a gloss on clause 15.4.1 for which there is no textual or contextual justification. There is no indication in clause 15.4.1 that such a distinction is to be drawn. Indeed, clause 15.4.1 does not deal with the terms and conditions of a fixed term employee at all. Clause 15.4.1 is directed to defining the mode of engagement of fixed term employees, just as clause 15.2.1 defines who is a permanent full-time employee and clause 15.5.1 defines who is a casual employee. Clause 15.4.1 is no different in character to either of these provisions.

[94] Moreover, it was submitted that the Unions' construction of clause 15.4.1 does not accord with its ordinary and natural meaning. Where, as in clause 15.4.1, the word "is" links a noun phrase ("[a]n employee engaged for a specified period of time or a specified task") with another noun phrase as complement ("an employee who works on either a permanent full-time basis or permanent part-time basis"), then it means that the person described by the first noun phrase exists as a person known by the second noun phrase - that is, the first coincides in identity with, or is identical with, the second.

[95] The first contextual matter is that there is nothing inherent in the concept of permanent employment per se that necessarily excludes fixed-term employees. The Deputy President correctly found at paragraph [95] that permanent employment under the Agreement expressly includes, rather than excludes, fixed-term employees, and correctly observed at paragraph [92] that clauses 24.3 and 42 "transpose certain entitlements for employees engaged for a specific period of time or task" and that a substantial number of other provisions of the Agreement do not differentiate fixed-term employees from other employees.[68]

[96] By way of illustration, Svitzer submitted that clause 41.2.7 deals with the basis for engaging employees on relief work under clause 41.2.7 of the Agreement. The "order of pick" is that permanent part-time employees are called first, then casual employees and finally permanent full-time employees on rostered leave. If fixed-term employees were held not to constitute part of a category of permanent part-time or permanent full-time employees, then the Agreement would not permit them to be called at all for relief work. Such an outcome would not be industrially sensible[69].

[97] As the Deputy President correctly acknowledged at [92], the only exception to the indistinguishable treatment of fixed-term and permanent employees is clause 21.1, which deals with redundancy. That provision is the exception that proves the rule for redundancy is by its nature a topic that requires that fixed-term employees be treated differently.

[98] The critical distinction for the purposes of the Agreement, Svitzer submitted, is between permanent and casual employees. As the Deputy President correctly observed, the Agreement gives fixed-term employees entitlements that casual employees do not have because during the term of their employment they are permanent, and not casual, employees. In this regard, Svitzer noted that at paragraphs [95] and [96] of the Decision, the Deputy President used the word "ongoing" to distinguish permanent from casual employment.

[99] The Agreement's treatment of fixed term employees as permanent employees was said to be consistent with the Act, which does not ordinarily distinguish between the entitlements granted amongst different types of part-time and full-time workers - except, for obvious reasons, in relation to termination of employment: s. 123(1)(a). In relation to a submission by the AIMPE and AMOU that the Deputy President found as a fact that the mutual intention of the parties was to the effect that permanent full-time employees (who were ongoing, as opposed to fixed term) were to be the primary source of crewing port rosters, Svitzer argued that the correct position is that, when paragraphs [99]-[100] are read in the context of paragraphs [100]-[105], it is evident that the Deputy President's finding about prioritisation of permanent full-time employment was subject to the qualification that the Agreement treats fixed-term employees as permanents, finding that: "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."[70]

[100] In relation to the Sydney POPs, Svitzer submits that the purpose of clause 1 is to outline the minimum number of crew that must be engaged in the Port. The Sydney POPs provide that there are to be a minimum of "15 x full-time crew". No reference is made to the crew being permanent. They simply are described as "full-time". There is no language in the Sydney POPs to suggest that such roles could not be filled by permanent full-time employees on fixed-term contracts. The Sydney POPs also identify that an agreement was reached to engage two additional "LIR" (Leave in Running) crew for a fixed period. The POPs state that the additional crewing is being serviced by fixed-term employees, and that Svitzer retains the discretion to extend the engagement of these fixed-term employees. There is nothing in the second category of crewing that intersects or interferes with the first arrangement (15 x full-time crew) and it is additional to the full-time crewing complement.

[101] Svitzer rejected the submission of the AIMPE and AMOU that the part in clause 1 of the Sydney POPs which deals with the requirements of fixed-term contract, is otiose, and submitted that the second paragraph of clause 1 has material work to do. It compels Svitzer to engage two LIR crews for a six-month period and requires a review of operational requirements before those initial fixed term contracts were ended. In this way it adds to the minimum "manning" levels in the first paragraph of clause 1 - taking the total crew at the port to 17, at least for a fixed period.

[102] Svitzer submitted that there is no reference in the text of the Newcastle or the Western Port POPs to fixed term employees being excluded from these positions. For the reasons given, Svitzer contends that "permanents" should be read as incorporating fixed term employees and that the evidence of Mr Williams in relation to the Newcastle POPs was irrelevant.[71]

[103] In relation to the MUA's contention in ground 13 of the appeal, that the Deputy President failed to have regard to the "unchallenged evidence below" that the terms "permanent" and "full-time" were used interchangeably in the negotiations for the EA and that "were never understood by the parties to include fixed term contracts", Svitzer submitted that the evidence in question is contained in a paragraph of Mr Garrett's statement objected to by Svitzer[72] on the basis that it was Mr Garrett's subjective view on the agreement made during negotiations. In this respect, Svitzer noted that the Deputy President struck out the second sentence of that paragraph but allowed the first sentence, noting that the evidence may not be given weight.[73] As such, the only "unchallenged" evidence was irrelevant, and the Deputy President was right to not rely on it.

[104] In oral submissions in reply with respect to its appeal, Svitzer emphasised the following matters in relation to the content of the Brisbane and Melbourne POPs, with respect to the identification of minimum numbers of employees or composition of employees. First, none of these subject matters are mentioned in clause 41.2. Second, neither of the subject matters is authorised by clause 41.2 as a subject matter with which a POP may supply details. Third, no legally cognisable or recognised mechanism for giving authorisation was identified that could give effect to POPs dealing with those topics, at least to give POPs dealing with those topics primacy over an inconsistent provision in the Agreement, being clause 15.1.1. The suggestion that the term "roster" in clause 41.2.1(ii) as something encompassing these matters should be rejected, because past custom and practice, being pre-agreement conduct, is relied on. The difficulties with that approach are that the parties conducted themselves in a way that did not incorporate the concept of workforce composition, minimum numbers of employees or employment categories in a roster. It was also submitted that if rosters do say something about employment categories, then it would not be necessary for clause 42.1.1(ii) to go on to identify the range of matters appearing in that clause.

[105] In response to the argument that there was no inconsistency because nothing in the POPs as they were construed by the Deputy President prevented Svitzer from engaging fixed term employees, it was submitted that while Svitzer could engage fixed term employees, it could not roster them to do any actual work. It was also submitted that if this is the intention of the POPs, then where does one find that prohibition anywhere in the Agreement? Further, the POPs say nothing about the motivation or purpose for engaging fixed term employees and while there is evidence of purposes for which Svitzer has engaged fixed term employees, there is no suggestion in the Agreement that those are the only purposes for which such employees can be engaged. The scheme of the Agreement relating to the POPs is as follows: clause 41.1 authorises the making of POPs to apply at particular ports; clause 41.2 contains a mandatory requirement that POPs will deal with particular subject matters; clause 5.3.1 takes up the POPs authorised in clause 41.1 and delineated in clause 41.2, and incorporates them into the Agreement in the first sentence and in the second sentence, provides a mechanism for harmonising the two instruments. It was also submitted that the list of matters in clause 41.2 is exhaustive and that this is the only sensible way to read it, because of the significance the Agreement attaches to POPs, where the way the POPs deal with a subject will become a term of the Agreement, subject to the second sentence of clause 5.3.1. If not construed in this way, clause 41.1 would be an open invitation to make POPs about any subject matter, which would then be invested with the significance of a term of the Agreement.

[106] Svitzer accepted that clause 15.5.1 is a limitation on its common law discretion to employ anyone it likes on any terms, but once that limitation is passed, then there is an unqualified and unfettered discretion to employ employees in any category in accordance with clauses 15.2 - 15.5. In relation to the arguments that a single instrument is being construed, and that the case law cited by Svitzer is not relevant to internal inconsistency, it was submitted that the Agreement is an instrument that includes clause 5.3.1, the mechanism by which harmony between the Agreement and POPs is achieved. Accordingly, there is no requirement to strain to give meaning and effect to every term of a POP, if to do so is to avoid the operation of clause 5.3.1. It was also contended that notwithstanding the Unions' arguments to the contrary, the Commission is effectively dealing with two different instruments not one, on the basis that although the first sentence in clause 5.3 has the effect of incorporating the POPs, the whole construct of the second sentence is to require a comparison between the terms of the Agreement and those of the POPs, and that sentence then tells you how to resolve any inconsistency. A specific example of such inconsistency was said to be found in the Melbourne POPs which was the subject of a question from the Full Bench as to the impossibility of a fixed term employee fitting into the Melbourne POPs. The response from the Unions that there is a vague custom of acquiescence or understanding about fixed term employment, is not a basis upon which to construe the Agreement.

[107] In relation to the AIMPE/AMOU appeal, Svitzer submitted that starting with the dictionary definition of the term "permanent" elevates that definition over the way in which the term is used in the Agreement, including in clause 15.4, which the Deputy President determined meant that there are variants within the category of permanent employment, and that fixed term employment was a subset in either of the two categories of employment in 15.1.1. Dictionaries can be helpful in identifying the range of possible meanings of a word, but not whether the word has any particular meaning in a particular instrument in particular context.[74] It is also well established that the ordinary and natural meaning of a word may be displaced, where it clearly appears that the word or expression has been used in a special sense, peculiar to the makers of the document. It was submitted that this is what happened in the present case, where the parties used the concept of permanent employment in a way that allowed fixed term employment to be a subset of permanent employment. In this regard, the critical distinction is not between permanent employees and fixed term employees. Rather the distinction is between permanent employees, of whom (in this Agreement) fixed term employees are a subset and casual employees on the other hand.

[108] Finally, it was submitted that if the Unions' construction was accepted, there would be a range of provisions in the Agreement that do not apply to fixed term employees, including recruitment and selection in clause 16, and other provisions dealt with by the Deputy President at paragraphs [92] - [95] of the Decision. Consistent with Amcor Limited v Construction, Forestry, Mining and Energy Union[75], it is not industrially sensible to have an enterprise agreement construed in a way which excludes a whole category of employees from the operation of such provisions. It was further contended that the Unions' submissions that clause 15.4 is a deeming clause should not be accepted, and the language of that clause uses the term "is" as a link making clear that there is a direct, immediate and complete coincidence between fixed term employees and employees employed on a permanent basis - they are the same thing.

[116] Central to the Unions' appeals are propositions that:

the categories of employment in clause 15.1.1 are mutually exclusive;

employees engaged for a specified period of time / task as defined in clause 15.4 of the Agreement are not permanent full-time or permanent part-time employees as defined in clauses 15.2 and 15.3 respectively;

the effect of clause 15.4 is to "deem" that employees engaged for a specified period of time / task are treated in the same way as permanent employees for the purposes of payment and other entitlements rather than to establish that these employees are a subset of permanent employees;

the Agreement at clause 41 provides for and allows POPs to set out details including limits on the numbers of employees in each of the four employment categories specified in clause 15.1.1 and the composition of the workforce at each Port in terms of those employment categories;

Svitzer's discretion to employ persons in the four categories of employment in clause 15.1 can be fettered by the terms of the POPs consistent with clause 41 and the fetter will not trigger an inconsistency between the Agreement and the POPs;

references to "permanent full-time", "permanent part-time", "full-time", "part-time" or "permanent" crews or employees in the POPs are references to permanent full-time employees defined in clause 15.2 of the Agreement and/or permanent part-time employees as defined in clause15.3; and

Svitzer is not permitted to fill vacant positions by replacing "permanent full-time", "permanent part-time", "full-time", "part-time" or "permanent" employees or crews with employees engaged for a specified period of time / task.

[117] Central to Svitzer's appeal is the proposition that clause 15.1.1 gives Svitzer an unfettered right to employ persons in any of the four employment categories in clause 15.1, and that any fetter can only be effective if it is in the Agreement proper rather than the POPs. Also central to Svitzer's argument is the proposition that any provision of the POPs which purports to fetter its discretion to employ persons in any of the four employment categories, has no effect because it engages clause 5.3 of the Agreement. Svitzer's arguments in the appeal do not depend on establishing that an employee engaged for a specified period of time / task (fixed term employee), is a permanent full-time or permanent part-time employee, notwithstanding its submission that the Deputy President's conclusion in this regard is correct.

[118] Svitzer's appeal grounds also assert that clause 41.2.1(ii) of the Agreement does not require that the number of crews on duty and on leave be included in the POPs and even if the POPs are required to include details of work days, component of predictable leave days, and number of crews on duty and leave required to man the roster, there is no reference in that clause to the POPs including types/categories of employment and the number of employees in each category.

[119] Svitzer accepts that taking its construction of the Agreement to the ultimate extent, it has the right to replace every employee at any Port with a fixed term or casual employee, because its discretion to employ persons in any employment category is entirely unfettered by the POPs. Svitzer contends that this is so regardless of the fact that POPs may purport to impose such a fetter consistent with a genuine belief by the parties who negotiated the POPs.

[120] It is not in dispute that all POPs considered in the Deputy President's decision contain provisions including that a specified number of crews or specified numbers of employees in the classifications of Masters, Engineers and Ratings will be employed at each Port. The POPs also refer in various clauses to crews and employees as "permanent", "full time" and in some cases to "fixed term" employees. If Svitzer's construction of the Agreement is correct, then it must follow that these provisions are also inconsistent with the terms of the Agreement that Svitzer claims gives it unfettered discretion and of no effect on the ground of inconsistency as provided in clause 5 of the Agreement.

[121] In our view concentration on issues such as fettering, whether employment categories are "_mutually exclusiv_e", and whether employees engaged for a specified period of time / task are permanent employees or are deemed to be such, raised by the parties at first instance and in the appeal, are apt to confuse the issues in dispute. We are also of the view that the Deputy President's conclusion at paragraphs [94] and [105] that employees engaged for a specified period of time / task are permanent employees also has that potential. The nub of the dispute before the Deputy President was not whether fixed term employees are permanent employees, but rather, whether the terms of POPs can limit Svitzer's right to engage fixed term employees in positions that the Unions claim are designated in the POPs in a way that requires that they be filled only by permanent employees rather than by fixed term employees and if so, whether on a proper construction of the POPs considered by the Deputy President have that effect.

[122] These issues can be distilled into two specific questions:

Are the POPs agreed at each Port stipulating the numbers, categories and classifications of employment of employees or crews of no effect because those provisions are inconsistent with the Agreement and engage clause 5.3.1; and

If those provisions have effect as terms of the Agreement, on a proper construction of each of the disputed POPs, do the references to "permanent full-time", "permanent part-time", "full-time", "part-time" or "permanent" employees/crews, include only employees defined in clause 15.2 (Full-time employment) and 15.3 (Permanent Part-time employment) or do those references also include employees engaged for a specified period of time / task as defined in clause 15.4 so that this category of employees can be engaged by Svitzer without limitation at a particular port.

[123] To determine these questions and the correctness of the contentions of the parties, it is necessary to construe the terms of the Agreement and the POPs. The starting point for the construction of the Agreement is the ordinary meaning of the words in the disputed provisions read in the context of the clause in which those provisions appear. We then consider those provisions in the context of the Agreement as a whole and other relevant background matters.

[124] We commence with clause 15 - "Categories of Employment and Engagement", which contains the provisions on which the present dispute centres - clauses 15.1.1 and 15.4. We generally agree with the contention advanced by the Unions that clause 15 specifies four distinct categories of employment defined in clauses 15.2 - 15.5. A fifth category of Trainee is included in clause 15.6. Further, we agree with the Unions' contention that clause 15.1 is permissive rather than mandatory.

[125] Our reasons for concluding that the provisions in clauses 15.2 - 15.4 are permissive are as follows. The chapeau to clause 15.1.1 states that that: "An employee under the Agreement may be engaged in one of the following employment categories" (emphasis added). It is well established that the term "may" is permissive. However, it does not follow that because Svitzer is permitted to employ persons in one of four employment categories, that this discretion cannot be conditioned by another term of the Agreement or in a manner provided for in the Agreement. Had the clause been intended to grant absolute discretion to Svitzer in the form of a right to populate its entire workforce with fixed term or casual employees, it would be expected that more direct language would have been used.

[126] The cases cited in Svitzer's submissions in support of the proposition that the term "may" used without qualification indicates an unfettered discretion, concern the construction of statutory provisions. These cases do not assist with the construction of the Agreement and nor do they support a general presumption that the term "may" without qualification, indicates an unfettered discretion or has a compulsory effect equivalent to "shall". To the extent that relevant principles can be derived from the cases, they are that: those who assert that the term "may" has a compulsory meaning have an onus to show that as a matter of construction this is so; permissive or facilitative expressions are potential and never (in themselves) significant of any obligation; and the question of whether such expressions are compulsory must be resolved extrinsically or in the context of the relevant provision. [94]

[127] In the context of clause 15 of the Agreement there is no indication that the term "may" should operate other than permissively. The provision enables Svitzer to engage employees in one of the specified categories of employment, subject to the other provisions of the Agreement, including for reasons set out later and where relevant, the POPs. Clause 15.1.1 also indicates that the "discretion" is fettered in the sense that Svitzer is confined to the four categories and is not at liberty to engage persons to do work covered by the Agreement in a form of employment not encompassed in one of the categories.

[128] Our reasons for concluding that the provisions in clauses 15.12 - 15.4 describe distinct and different categories of employment are as follows. Those categories are set out in clause 15.1.1 as: "permanent full-time", "permanent part-time", "employee engaged for a specified period of time / task", or "casual employment". The conjunction "or" is used to connect the list of categories and appears between the categories "employee engaged for a specified period of time / task" and "casual employment". On a plain reading of the provision, the position of "or" connecting the penultimate employment category with the last category, indicates that the list of categories should be read as if that term appeared after each category. This emphasises that the categories are separate and distinct alternatives.

[129] The final sentence of clause 15.1.1, read in conjunction with the chapeau, further indicates that the employment categories are distinct, by stating that employees will be engaged in "one of the following employment categories... in accordance with clauses 15.2 - 15.6 respectively". Clauses 15.2 - 15.6 contain definitions of each category of employment. The use of the term "respectively" indicates that each of the definitions aligns with one of the four specific categories of employment and that the definitions are mutually exclusive. Further, the clause is drafted so that the concluding words qualify each of the alternative categories of employment set out above, indicating that the engagement must be in accordance with one of the clauses referred to in that sentence - clauses 15.2 - 15.6.

[130] On a plain reading, each of those clauses defines only one category of employment. Clause 15.2 defines permanent full-time employment, clause 15.3 defines permanent part-time employment, clause 15.4 defines employment for a specified period of time or specified task and clause 15.5 defines casual employment. Clause 15.6 provides that a person may be engaged as a trainee and upon satisfactory completion of their traineeship will be eligible to apply for available employment under one of the employment categories specified in clauses 15.2 to 15.5, further emphasising the distinction between those categories.

[131] There is no indication in clause 15.1.1 that employees engaged for a specified period of time / task, are subcategories of permanent full-time or permanent part-time employment. The category "employee engaged for a specified period of time / task" itself includes two types of engagements: for a specified period of time or specified task. Although the term "permanent" is primarily attached to the categories of full-time and part-time employment, it is also used to define the employment category of "employee engaged for a specified period of time/task" as an employee who works on a permanent full-time or permanent part-time basis.

[132] Despite this overlap, it is plain that the employment categories in clause 15.1.1 are separate and distinct. Full-time employment is not part-time employment nor casual employment and vice versa. That casual employees may be engaged to work the maximum number of ordinary hours worked by full-time employees, or hours that are similar to those worked by permanent part-time employees, does not change the nature of their casual employment as casual. Employment for a specified period of time / specified task is also fundamentally different from permanent full-time or permanent part-time employment because their employment has a predetermined end date.

[133] The definition in clause 15.4 does not go so far as to state that that "an employee engaged for a specified period of time / task" is a permanent full-time or permanent part-time employee for all purposes of the Agreement. Instead, the definition states that "an employee engaged for a specified period of time / 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." (emphasis added). The plain meaning of the term "basis" as used in clause 15.4 is that the hours of work and other terms and conditions of employees engaged for a specified period of time or task, are based on those of permanent full-time or part-time employees. This is consistent with the use of the same term in relation to part-time employment.

[134] This construction is confirmed by the final phrase in clause 15.4.1 which commences with the term "but", indicating that the next part of the sentence is an exception to the first part. The exception is that while employees the subject of the definition in clause 15.4 work and are paid as permanent employees and are otherwise entitled to the relevant benefits of permanent part-time or permanent full-time employees, they are "engaged for a specified period of time or specified task". Thus, the effect of the definition in clause 15.4.1 is that an employee engaged for a specified period of time / task, is an employee who may be engaged to work on either a full-time or part-time basis, and whose terms and conditions of employment are based on those of permanent full-time or permanent part-time employees, except that they are not permanent employees because they are subject to a limitation upon their employment by reference to a period of time or a task, that does not apply to permanent full-time or permanent part-time employees as defined in clauses 15.4.2 and 15.4.3 respectively. The precise nature of the limitation depends on the engagement in each case. The Agreement does not, for example, limit the use of fixed-term employees to cover absences, whether short- or long-term. Further, the overlap between the definitions in clauses 15.2 and 15.3 on the one hand and clause 15.4, by virtue of the reference to permanent employment, means that while fixed term employees are not permanent employees, they may be considered as and treated as such for other purposes of the Agreement and the POPs.

[135] That the category "employee engaged for a specified period of time / task" is distinct from other employment categories is also indicated by the use in clause 15 of the terms, "employment" and "engagement" and their derivatives. In the chapeau to clause 15.1.1, the term "engaged" is used to preface all employment categories listed in the clause. A derivative of the term is used again in the third employment category "employee engaged for a specified period of time / task". The term "engaged" is also used in the definitions in clause 15.4 ("employment for a specified period of time / task) and in the definition of "casual employment" in clause 15.5. The use of the term in the context of these employment categories indicates that employment in those categories is limited by time or task, advised to the employee in advance. As such the employee is "engaged" for the relevant period as distinct from the categories of permanent full-time and permanent part-time employment.

[136] In the chapeau to clause 15.1.2, the term "engagement" is used to indicate that written advice about the category of employment is required by clause 15.1.2(i) to be given at the point the employment commences. Clause 15.1.2(ii) contains a further requirement to the effect that the written advice of the category of employment must also include the duration or expected duration of the employee's engagement "as appropriate". The requirement in clause 15.1.2(ii) can only apply to employees engaged for a specified period of time / task and this is the only category of employment where employees are engaged on that basis so that it is appropriate to provide them with that written advice in relation to duration of an engagement.

[137] This can be contrasted with permanent full-time and permanent part-time employees, where the term "engagement" describes the point at which their employment in those categories commences and their hours of work are established, as indicated in clauses 15.2.1, 15.3.2 and 15.3.3. Thereafter, permanent employees are "employed" in either the full-time or part-time employment category and that employment is not an engagement limited by a period of time or the performance of a task. That employment and engagement are different concepts is also emphasised by the heading of the clause 15 "Categories of Employment and Engagement". The requirement in clause 15.1.2 that employees be advised in writing at the time of engagement, of the category of employment in which they are employed indicates that each employee can be employed in only one category.

[138] We agree with the Unions' contentions that: clause 15.4 operates as a deeming clause; clause 15.1 is permissive; there are four distinct categories of employment defined in clauses 15.2 - 15.5; and that clause 15.4 deems that employees engaged for a specified period of time / task are treated as permanent employees for the purposes of terms and conditions of employment. However, we are also of the view that the permissive nature of clause 15.1 and the lack of restrictions in the Agreement on the circumstances in which fixed term employees can be engaged and the length of engagements, means that if a POPs does not, by express or objectively ascertainable terms, prevent fixed term employees from being engaged in positions that are designated as "permanent" in a POPs, then Svitzer may engage fixed term employees in those positions. Further, because clause 15.1 is permissive, a POPs may provide for a fixed term employee to be engaged in a designated permanent position within a designated permanent crew, without creating an inconsistency that engages clause 5.3.

[139] We next consider clause 41 of the Agreement which deals with hours of work, rosters and meals. The parties disagree about the extent to which (or whether) clause 41 provides for POPs to prescribe matters such as crew numbers and the categories in which crew members at each port will be employed. Clause 41.1 provides that there will be a set of POPs in each Port, to be reviewed annually. Clause 41.2 provides that POPs "will set out details" in respect of subject matter specified in the clause, and that clause 41 provides a foundation for the guidance of parties in developing POPs.

[140] Clause 41.2.1 deals with "Port rosters". The first provision of the clause - 41.2.1(i) - states that towage operations are carried out over 24 hours per day, on every day of the year. The importance of meeting customer requirements at ports is emphasised by clause 41.2.3 which states that the objective of any duty roster is to ensure that sufficient employees are available on two hours' notice to meet customer demands, unless POPs specify otherwise. While there is a proviso in the clause that the POPs may specify otherwise, it operates with respect to the notice period for the provision of towage, and not to the commitment to meet customer requirements. Clause 41.2.8 provides that POPs should not prevent or unreasonably restrict Svitzer's ability to meet customer and port requirements on Saturdays, Sundays or public holidays.

[141] By virtue of clause 41.2.1(ii) rosters are required, as far as practicable, to include the details of workdays, the "component of predictable leave days" and the number of "crews on duty and on leave, required to man the roster". The concept of a "crew" is a relevant contextual matter to which we will return. For present purposes, it is sufficient to note that the ordinary meaning of the term "crew" is a group of employees required to operate a boat. Clause 41.2.1(ii) is a general provision applicable to all categories of employees entitled to leave. In this regard, the term "component" relates to the portion or part of leave days that are predictable and indicates that not all leave days are required to be predictable. Clause 41.2 goes on to provide for predictability of work and leave for employees, with the level of predictability that must be provided being determined by the employment category in which an employee is employed.

[142] Clause 41.2.1(iii)A deals with off duty periods for permanent full-time employees and provides that these should, to the greatest practical extent, be predictable. Clause 41.2.1(iii)B provides that "Leave in running arrangements" whereby leave is not predictable, may be implemented where it is impracticable to predict leave periods to their fullest extent or when an employee's employment is converted to full-time employment under clause 15.3.4, which provides for permanent part-time employees to "convert to permanent full-time employment". As the note in clause 15.3.4 of the Agreement states, conversion to full time employment under that clause does not guarantee predictable rostered leave. These provisions reflect that permanent part-time employees supplement the roster and have different arrangements for the scheduling of off duty periods, which may not be easily altered when their employment is converted. There is nothing in either clause 42.1(iii)A or B to preclude these provisions applying to fixed term employees who work on the same basis as permanent full-time employees.

[143] Clause 41.2.1(iv) also deals with off duty periods for permanent part-time employees and commences with a commitment that permanent full-time employees will be the main source of crewing the port roster, while permanent part-time employees supplement the roster. The clause goes on to provide for the programming of off-duty periods for permanent part-time employees to enable them to supplement the roster. The second sentence of clause 41.2.1(iv) states that where a port cannot support a roster for permanent part-time employees, off duty periods will be programmed in accordance with 2 options designated A and B. Implicitly, where a port can support a roster for permanent part time employees the port should have such a roster, detailing the matters in clause 41.2.1(ii) which applies to rosters generally and requires that as far as practicable, rosters will show inter alia the component of predictable leave days. Again, there is nothing to indicate that this provision does not apply to fixed term employees working on a permanent part-time basis. Clause 41.2(iv) concludes with a requirement that permanent part-time employees must otherwise be available for relief work duty in accordance with clause 41.2.7(i)A, which stipulates an order of call for relief work to supplement the roster designating permanent part time employees as "first call".

[144] The order of call established in clause 41.2.7(i)A, is a hierarchy with respect to the obligation placed on employees in categories of employment provided for in clause 15, to undertake relief work to supplement the roster. The relief arrangements establish an order in which employees will be called to work to provide relief on a roster, to ensure that availability requirements can be met. On first call are permanent part-time employees, subject to certain qualifications in relation to when those employees are on an off-duty period pursuant to clause 41.2.1(iv). On second call are casual employees and on third call, permanent full-time employees on rostered leave. Significantly, clause 41.2.7(ii) stipulates that permanent full-time employees on rostered leave are not obligated to be available for relief work, but there is a commitment that every employee and the Unions will ensure that under normal circumstances as described in the POPs, port operations are not compromised by unavailability of relief personnel to cover short term or unplanned absences.

[145] Under the heading "casual usage" clause 41.2.7(iii) provides for a review of relief days measured over a representative period, in conjunction with the annual review of the POPs. Notwithstanding the reference to casual usage in the heading of the provision, a review of relief days would necessarily encompass all relief days and not only those where casuals are relieving. Such a review is consistent with the objectives in clause 42, that towage operations can be carried out 24 hours per day on every day of the year, minimum requirements in relation to predictable leave are met, rosters ensure sufficient employees are available to satisfy customer requirements on no more than two hours' notice, constraints in relation to scheduled hours of work are met on a daily and annual basis, and commitments by employees and unions to provide relief are met.

[146] This review of casual usage is also consistent with the statement in clause 41.2(iv) that permanent full-time employees are the main source of crewing the port roster and that permanent part-time employees supplement the roster. There is no reference in clause 41 to employees engaged for a specified period of time / task. While this is consistent with the Deputy President's conclusion that such employees are permanent employees it is also consistent with the Unions' contention that employees engaged for a specified period of time / task, although not permanent employees, are treated as such and used to replace permanent employees who are absent from work for longer periods or planned absences. Accordingly, an employee engaged for a specified period of time / task could simply slot into the roster and leave arrangements relevant to the employee being replaced or work under whatever arrangement was included in the relevant POPs for employees in that category. However, as we have noted, there is no provision in the Agreement limiting the circumstances in which fixed term employees may be engaged or the period of the engagement. Accordingly POPs at a particular port may prescribe such limits without creating an inconsistency that engages clause 5.3. Where POPs do not distinguish between permanent full-time or permanent part-time employees on the one hand and fixed term employees on the other, or do not restrict the engagement of fixed term employees, those employees may be engaged to fill "permanent" or "full time" positions or on "permanent" or "full time" crews, because fixed term employees may work on either a permanent full-time or a permanent part-time basis.

[147] Read as a whole, clause 41 of the Agreement establishes a framework for hours of work and rosters and leaves matters of detail to the POPs for each port. Clause 41 refers extensively to matters of detail being included in POPs for each port consistent with the parameters set out in the clause. Clause 41.2 refers to the clause being a foundation for guidance of the parties in developing POPs. Clause 41.2.4 specifies maximum hours of work that can be scheduled and the maximum period of continuous duty an employee can be scheduled to work. The details required by clause 41 to be included in rosters are comprehensive. It is notable that those details include both work and leave including predictable leave and the number of crews on duty and on leave, to maintain the roster (clause 41.2.1(ii)). Other matters to be dealt with in POPs include procedures for giving, receiving and acknowledging work orders and allocation of work (41.2.2).

[148] It is clear that the POPs are intended to set out details about hours of work, rosters and related matters, including leave, rather than those matters being specified in the body of the Agreement. Clause 41 also establishes a process for changing POPs by agreement, through consultation and a procedure to be followed in the event of disputes, which includes the ability of the Commission to determine disputes through arbitration under the dispute settlement procedure in clause 10 of the Agreement.

[149] Clause 42 of the Agreement provides for a scheme that operates in conjunction with the NES and is intended to satisfy the provisions of the NES with respect to maximum weekly hours of work, annual leave and public holidays (clause 42.1). Clause 42.2 provides that the roster that prevails in the port under the applicable POPs, will provide for the number of days free of duty set out in clause 42.3 averaged over the roster cycle.

[150] Clause 42.3 sets out entitlements to leave ("even-time leave") for permanent full-time employees, permanent part-time employees and employees engaged for a specified period of time or a specified task. Employees in the latter category are entitled "pro-rata", to the leave granted to a full-time employee based on the period of the engagement, indicating that their entitlements are based on those of permanent full-time or permanent part-time employees. although they are not permanent employees as defined in clause 15.2 of the Agreement. Clause 42.4 provides that the leave prescribed in clause 42 includes the entitlements of full-time employees (who may have otherwise been engaged on a Monday to Friday basis in accordance with the Award) to 104 days of leave in lieu of weekends; 5 weeks of paid annual leave for shift workers; public holiday entitlements; an additional 28 days of leave in recognition of the 35-hour week. Clause 43 deals with the discharge of accrued leave and sets out provisions in relation to taking leave or to cashing out leave.

[151] The effect of the leave provisions in the Agreement is that "leave" includes NES entitlements as well as all time where an employee is rostered off including compensation for weekends, public holidays and a 35-hour week. These forms of leave accrue and vest annually and are capable of being predicted. The leave entitlements listed in clause 42.4 do not include personal leave, compassionate leave, bereavement leave, long service leave or parental leave which are additional entitlements. These additional forms of leave are per-occasion entitlements and in the case of long service leave, do not vest annually and require periods of service longer than 12 months.

[152] It is important to note that clause 42 deals with the quantum of leave entitlements and what those entitlements encompass rather than when leave is to be taken and the degree to which employees are entitled to predictability. The arrangements for the taking of leave and the degree to which it is predictable are dealt with in clause 41 in the context of rosters.

[153] The nature of leave under the Agreement and the entitlements it encompasses necessitates that rosters deal with a broader range of matters than simply scheduling when employees work. Read in conjunction with clause 41, it is clear that rosters are required to be developed having regard to the leave entitlements under clause 42.4 of the entire cohort of employees to whom the roster applies, rules about when leave is to be taken, the extent to which it is required to be predictable and the obligations of employees in the cohort to make themselves available for relief work. In this regard, relief work is required to cover leave entitlements in clause 42.4 of the Agreement taken by employees as well as other forms of leave such as personal leave and other forms of leave which may or may not be taken with notice.

[154] The leave provisions bring into focus the provisions of the Agreement requiring that as far as practicable, rosters include the detail of workdays, the component of predictable leave days and the number of crews required to man the roster. The category of employment of an employee determines the level of predictability in taking leave that the employee is entitled to and whether the employee is required to relieve absent employees. Consistent with the requirements in clause 41, rosters may include details of the numbers of employees in various categories of employment and the way that employees in those categories may be rostered. That rosters would stipulate categories of employment and the numbers of employees in each category, is also consistent with the commitments given by the Unions and employees to provide relief and to ensure that Svitzer can meet its customer requirements.

[155] Also relevant to the construction of provisions of the Agreement dealing with employment categories and rostering are the following provisions. While the Agreement does not stipulate minimum crewing, it is common ground that in normal operational circumstances a crew is constituted by three employees, one from each classification of Master, Engineer and Rating. This is evident from clause 17.1 which provides that employees work as a team to ensure the safe operation of a tug. That clause also provides for three classifications of employees: Masters, Engineers and Ratings. The duties of each classification of employee are set out in clause 17.

[156] In summary, Masters are in command of the tug and its crew and fill the role of the Ship Security Officer required by the Maritime Transport Security Act 2003 to be designated. Masters also have specified duties including acting as tug manager, coordinating the attendance of the crew for operations, provision of stores for operations, assurance and ISM procedures, supervision and assisting with maintenance. Engineers have a range of duties including being in charge of and responsible for all maintenance in accordance with the planned maintenance system for tugs agreed with the Company, supervision of employees assisting with maintenance, signing off on maintenance work completed and responsibility for the safe operation of the vessels engines, generators and associated machinery and equipment whilst on towage services, ensuring all machinery (deck and engine) is maintained to operational standards at all times, carrying out routine maintenance and repairs and responsibility for ensuring that the agreed Planned Maintenance System is carried out onboard. Ratings undertake deck and general-purpose duties including operation of firefighting equipment and providing assistance to firefighting personnel, operation of oil spill equipment, maintenance and the handling of stores and equipment including forklift operations.

[157] Clause 31.2 deals with crewing on voyages involving outside work, contract towage and emergency operations or salvage work. The clause requires additional crew members from each classification depending on the length of the voyage and the type of tug concerned. Clause 19.4 of the Agreement deals with the establishment of a Workforce Planning and Development Committee for each classification - Masters, Engineers and Ratings. The functions of the Committee at clause 19.4.2(i)B include reviewing current and future workforce requirements for respective employee classifications.

[158] These provisions indicate the significance of the composition of crews. Rostering of employees is not a simple matter of ensuring that the number of employees in the total cohort available to be rostered is sufficient. In addition to ensuring that employees are provided with leave to the required level of predictability and that there are sufficient employees to provide relief, rosters are also required to ensure that there are sufficient numbers of employees in each classification to constitute crews. This is a further level of complexity that supports a construction whereby rosters contain detail including employment categories of the employees in the cohort to be rostered and the numbers of employees within each category. The necessary level of detail in rosters is also evidenced by the agreement of parties to some POPs that the names of employees who work the roster are included.

[159] Clause 16.1.1 of the Agreement deals with recruitment for permanent employees and trainees. By virtue of clause 16.1.1(i) Svitzer is required to advertise the "position" with the "respective Union" being advised or given a copy of the advertisement and may identify candidates for selection. There is no apparent reason why this provision would apply to employees engaged for a specified period of time / task, replacing permanent employees who are absent for identifiable periods or being engaged to undertake particular tasks. Conversely, there is no apparent reason why the clause would not apply where the engagement of the fixed term employee is not linked to the temporary absence of a permanent full-time or permanent part-time employee.

[160] Clause 20.1.1 provides for notice periods required to be given by Svitzer to terminate the employment of a "permanent employee". The notice periods are in excess of the minimum notice periods provided for in the NES for Masters and Engineers. Clause 20.4 deals with notice of termination for permanent employees terminating their own employment and requires Masters and Engineers to give four weeks' notice and Ratings to give two weeks' notice. Clause 20.5 states that the employment of a casual employee terminates at the end of each period of duty. While clause 20.1 does not specifically exclude employees engaged for a specified period of time / task from an entitlement to notice of termination, such an exclusion is implicit because the clause applies only to permanent employees, which in the context of the Agreement means employees as defined in clause 15.2. This exclusion is also consistent with s. 123 of the Act.

[161] We note that the Agreement does not contain a provision dealing with inconsistency with the NES and that there is no impediment to an agreement providing notice periods to employees who are not entitled to receive them, provided that this does not exclude the NES. We also note that the inclusion of a notice period allowing for either party to terminate the employment of an employee engaged for a specified period of time / task, may result in that engagement not being for a limited time or task. Accordingly, the fact that clause 20.4 does not specifically exclude employees engaged for a specified period of time / task, does not support a construction of the Agreement to the effect that employees engaged in that category are permanent employees. Clause 21 deals with Redundancy and at subclause 1 states that the redundancy provisions apply to Full Time and Permanent Part Time Employees and do not apply to employees engaged for a specified period of time / task or to casual employees. This is also entirely consistent with s. 123 of the Act. It is not necessary that we determine if, or the extent to which, the notice provisions apply to fixed term employees in the range of circumstances in which they may be engaged to work on rosters and related arrangements under the POPs applying at a particular port.

[162] Clause 24 sets out provisions in relation to salaries. There are specific provisions dealing with salaries for permanent full time, permanent part time and casual employees. Relevantly, clause 24.3 states that: "Employees engaged for specified period of time or specified task will be paid as a permanent employee or as a permanent part time employee, depending on their mode of engagement." Clause 24.3 is a further provision indicating that employees engaged for a specified period of time / task are treated as or deemed to be permanent full-time or permanent part-time employees for certain purposes of the Agreement - in this case calculation and payment of wages. Thus, when fixed term employees are engaged at a particular port in accordance with the roster and related arrangements under the POPs they are paid and treated as permanent employees.

[163] There are clauses in the Agreement providing entitlements to "permanent employees" including: Tug Efficiency and Management Systems Bonus (clause 26); industrial and protective clothing (clause 28); mobile telephone allowance (clause 29.1); compensation for loss of certificate of competency (clause 40); and personal leave bonus (clause 45). There are also clauses providing entitlements to all employees including: travel expenses (clause 27); nominated voyages allowance (clause 30); salvage work (clause 32); emergency maintenance (clause 33); penalty payment extended hours (clause 34); extreme weather allowance (clause 35); compensation for personal effects lost (clause 37); accident pay (clause 38); and counselling service (clause 39).

[164] The fact that the Agreement is agnostic in relation to distinguishing between permanent full-time and part-time employees on the one hand and employees engaged for a specified period of time / task on the other, for the purposes of entitlements under various clauses does not support the proposition that permanent categories of employment as defined in the Agreement include employees engaged for a specified period of time / task. Rather, the benefits and entitlements in these clauses are of a kind where the general provision in clause 15.4 entitling employees engaged for specified period of time / task to be paid on the same basis as permanent categories of employees would apply in circumstances where the entitlements are relevant or applicable in the circumstances of fixed term employees working on rosters as provided for in the relevant POPs.

[165] The disputed provisions must be read in the context of the Agreement as a whole. As we have noted, there are numerous provisions of the Agreement indicating recognition by employees and the Unions of the importance of Svitzer servicing its customers: continuity of operations (clause 10); towage operations to be carried out over 24 hours per day on 365 days of per year (clause 41.2.1(i)); objectives of duty roster to ensure that sufficient employees are available on two hours' notice to meet customer requirements (clause 41.2.3); a commitment that employees and the Union will ensure that under normal circumstances that port operations are not compromised by unavailability of relief personnel (clause 41.2.7); and POPs should not prevent or unreasonably restrict Svitzer's ability to meet customer and port requirements on Saturdays, Sundays or Public Holidays (clause 41.2.8).

[166] When clauses of the Agreement dealing with employment categories, classifications, rosters and leave are read in the context of these provisions it is apparent that the Agreement establishes mutual benefits and obligations whereby employees commit to meeting the requirements of Svitzer's customers to be provided with service 24 hours a day 365 days per year, and in return, Svitzer agrees to provide sufficient numbers of employees to enable those obligations to be met, while ensuring that employees are able to take their leave with the required level of predictability. The mechanism for determining how and on what basis employees will be employed or engaged to ensure that this obligation is met at a particular port, is regulated by the POPs at that port.

[167] It is entirely consistent with the context in which the Agreement operates that the requirements in clause 41.2.1 (ii) with respect to the detail to be included in rosters encompasses the categories of employment and numbers of members of the cohort of employees who comprise the crews required to man the roster. The category of employment of each employee determines that employee's entitlement to predictable leave and obligation to be available for relief work. When the leave provisions in clause 42 and the requirements for crews to include at least one employee from each of the three classifications are considered in the context of obligations for employees to undertake relief work to supplement the roster, it is difficult to envision how a roster meeting the requirements of clause 41.2.1(ii) could operate without encompassing the employment categories of each member and the numbers of members in each category of the cohort of employees available to be rostered.

[168] The provisions of the Agreement around which the present appeal centres must also be considered against several other contextual matters external to the Agreement. Firstly, Svitzer and its employees covered by the Agreement provide harbour towage and other services, such as emergency response, in or about 18 ports throughout Australia. It is common knowledge that these services are a crucial link in the Australian supply chain. It is also common knowledge that each port has unique conditions requiring that employees providing the services have particular knowledge and experience related to the operations of the port where they work. Further, it is common knowledge that time and tide wait for no-one and that vessel movements dictating when services must be provided are unpredictable and significantly outside the control of the parties.

[169] In addition, the unique skill set of each constituent member of a tugboat crew and the way in which crews operate in relation to tugboats, is a contextual factor that is also relevant to the construction of the Agreement. This matter was canvassed in the proceedings relating to the approval of the Agreement. In summary, in deciding to approve the Agreement the Commission was required to consider an argument advanced by the AIMPE that the group of employees covered by the Agreement was not fairly chosen on the basis that the views of engineers in the bargaining process had been overridden by members of the MUA and AMOU. The decision recording the approval of the Agreement rejected this contention and referred to evidence from Svitzer management to the effect that employees in the three classifications under the Agreement work very closely together as a team to operate a vessel.[95] A crew cannot be constituted by any three available employees. Employees making up a crew must have specific qualifications and experience. These external contextual matters also support a construction of the Agreement which allows for POPs to detail numbers and categories of employment for the cohort of employees working at a particular port.

[170] It is also well established that in the context of awards and enterprise agreements and industrial relations jurisprudence over an extensive period, fixed term employment is characterised by the employee being engaged for a specific period of time or for an uncertain period that is contingent on a particular event, such as the completion of a task or project. Such employment may also be seasonal involving a separate engagement for each season. [96] A further characteristic is that the duration or the contingent event that will end the employment is agreed when the engagement is entered into..

[171] The concept of fixed term employment can be contrasted with ongoing employment, sometimes known as weekly employment, or permanent employment. Ongoing employment continues until it is terminated at the initiative of either the employer or the employee or there is an intervening event that frustrates the employment contract. The distinguishing characteristic of fixed term employment is that when the agreed end date is reached or the specified task is completed, the contract will automatically end without action by either party or the need for an external event that frustrates the contract.

[172] The parties who negotiated the Agreement explicitly recognised that fixed term employment is distinct from permanent and casual employment by including four different definitions of employment categories in clause 15. It would be surprising if the Unions and representatives of Svitzer who negotiated the Agreement and the POPs did not understand this distinction and its significance, given the emphasis on permanent full-time employees as the main source of crewing the port roster as set out in clause 41.2.1(iv).

[173] In relation to the findings with respect to issues on which the Deputy President based the Decision we conclude as follows. We agree with the Deputy President's conclusion that clause 15.1 does not give Svitzer an unfettered right to decide the basis upon which each employee is engaged and to deploy persons in any category of employment to any port. Clause 15.1 is permissive and defines the categories of employment in which Svitzer may employ or engage employees to perform work covered by the Agreement. Svitzer is permitted to engage employees in any category of employment in clause 15.1 unless otherwise limited. Limitations on this discretion are found in both the Agreement and the POPs.

[174] We also agree with the Deputy President's conclusion that POPs may contain effective terms that limit Svitzer's capacity to decide the basis upon which each employee is employed. While clause 41.2.1(ii) of the Agreement does not require rosters to include categories of employment and the number of employees in each category, or refer to such matters being included, the clause does not preclude such details being stipulated in POPs. Clause 41 provides for and allows POPs to prescribe limits on the numbers of employees in each of the four employment categories specified in clause 15.1.1 and the composition of the workforce at each Port in terms of those employment categories. The provision of such details is entirely consistent with the requirements that rosters detail workdays, component of predictable leave days, and number of crews on duty and leave required to man the roster. The inclusion of such details in POPs does not engage the provisions of clause 5.3.1 which operates only in relation to inconsistency.

[175] We respectfully do not agree with the premise of the Deputy President's conclusion that where POPs set rosters for "permanent crews" or "full time crews" without further specification, Svitzer is at liberty to fill those places with "employees who are permanent employees but who are engaged for a specified period of time". Employees engaged for a specified period of time / task as provided in clause 15.4 are not permanent employees and fixed term employment is not a category or type of permanent employment. It is apparent that the Deputy President's conclusion on this point was the result of the way that the case was argued at first instance. The Deputy President's conclusion on this point creates a tension in his construction of the POPs which is a matter we will return to when we consider the Deputy President's findings in relation to each of the disputed POPs.

[176] While fixed term employees as defined in clause 15.4 are not permanent full-time or part-time employees, it is also the case that there is no provision in the Agreement limiting the circumstances in which fixed term employees can be engaged or the duration of their engagement. The only requirement with respect to the engagement of fixed term employees is that the engagement must be for a period or task that is specified at the point it is entered into. The Agreement does not prevent Svitzer from engaging fixed term employees.

[177] While a conclusion that clause 15.1 is permissive means that a clause of the POPs restricting Svitzer's capacity to engage fixed term employees will not be invalid on the basis of inconsistency with the Agreement, the converse also applies. If a restriction is not express, then it must be objectively ascertainable from the language of the provisions through the appropriate application of the principles applicable to the construction of enterprise agreements. Where a restriction in POPs is not express or capable of being objectively ascertained, the permissive provisions in clause 15 operate and Svitzer's discretion to employ persons, staff rosters and constitute crews from any of the categories of employment in that clause is not limited.

[178] On a fair reading of the Deputy President's Decision, and notwithstanding his conclusion that fixed term employment is a category of permanent employment, the approach set out above is the approach the Deputy President took and upon which his conclusions are based. The Deputy President examined and construed each of the disputed POPs and found that where POPs expressly restrict Svitzer's ability to engage fixed term employees to fill particular positions, the restriction is effective. It is clear that the Deputy President was not satisfied as to the existence of a common intention that was objectively ascertainable, supporting the construction of the disputed POPs contended for by the Unions at ports where the Deputy President found that Svitzer's discretion was unfettered and the Company was free to engage fixed term employees at a particular port. In our view this approach was correct, and we now turn to consider whether the construction of each of the disputed POPs determined by the Deputy President was also correct.

[179] As we have noted, by virtue of clause 5.3.1, POPs are incorporated as a term of the Agreement for the particular port concerned. The Agreement prevails over the relevant POPs which have no effect to the extent of inconsistency with any term of the Agreement. POPs are defined in clause 3.1.16 to mean the operating procedures applying to a particular port which set out details in respect of the matters in clause 41.2 for that port. Because POPs are a term of the Agreement, the approach to construing the Agreement applies to the construction of POPs and we do not accept submissions to the contrary. Clause 5.3.1 does not compel a presumption that the list of matters that can be the subject of POPs or the effect of POPs should be read down solely on the basis that they may be inconsistent with the Agreement and if so, have no effect. The terms of POPs are read down or give way only to the extent they are inconsistent with the Agreement. As earlier iterations of the Agreement indicate, while it was also previously the case that the terms of the Agreement prevailed over the POPs to the extent of inconsistency, the parties agreed in 2013 that the POPs would be incorporated as a term of the Agreement. There is no basis to depart from the principle that that a construction resulting in a harmonious outcome, giving effect to all terms of the Agreement and the POPs, with each term having some work to do, is to be preferred.

[180] The issue raised by the Unions' appeals is whether references in POPs to "permanent full time", "full time", "part time", or "permanent" crews or employees encompass (or exclude) employees engaged for a specified period of time / task and thereby limit Svitzer's discretion to engage fixed term employees in crews or positions held by permanent employees at the port concerned. As we have noted, the Deputy President's conclusion on this point is impacted by his construction of the Agreement to the effect that fixed term employees are one of two kinds of permanent employees and that if a POPs does not specify what kind of permanent employee can be used to fill a particular roster or position, Svitzer can use a fixed term employee for that purpose. While we do not accept this premise of the Deputy President's conclusion, that is not the end of the matter. The question is whether on a proper construction of each of the individual POPs, Svitzer is prevented from engaging fixed term employees to fill positions of employees or in crews - referred to variously in the POPs as "permanent full time", "full time", "part time", or "permanent" - that the Unions contend must be filled by permanent employees as defined in clauses 15.2 and 15.3 of the Agreement and not fixed term employees as defined in clause 15.4.

[181] We observe that these various terms are used, sometimes interchangeably, in the POPS, and generally there are no separate definitions of these terms. Where the POPs adopt a definition,[97] this should be applied. Where not further defined in the POPs, and the term is the same as that set out in clause 15 of the Agreement, it should be given that meaning. Where another undefined term is used, its meaning is to be discerned from a consideration of the entirety of POPs, in the context of the Agreement, when read together.

[182] Our approach to the POPs is also informed by the common position of the parties, that it is intended that fixed term employees can replace employees for the purposes of leave and other similar circumstances. We observe that in some of the POPs the relief arrangements do not mention the use of fixed term employees in the options. Amongst other implications and given the terms of the Agreement outlined by us earlier, this means that a limit on the use of fixed term employees in the POPs concerned must be explicit or objectively ascertainable from their terms.

[183] It is convenient to commence by considering the Brisbane and Melbourne POPs which the Deputy President concluded fetter Svitzer's discretion to engage fixed term employees.

[187] The Deputy President noted at paragraph [122] that the part of the Brisbane POPs dealing with rosters and crewing, refers to particular types of employees as opposed to types of crews and at paragraph [123] that the most cohesive interpretation was that the reference to fixed term and permanent employees in clause 1(b)(i) suggested that the framers are referring to two different types of employees and that the references to permanent employees are references to "employees who have ongoing employment and are not engaged for a specified time or task". Accordingly, the Deputy President found that the Brisbane POPs places a fetter upon how Svitzer can use fixed term employees and that the effect of paragraphs 1(b)(ii) and 1(b)(iv) which respectively refer to both permanent and fixed term employees, is that fixed term employees can only be used to relieve or supplement permanent employees.

[188] Although the POPs is worded imprecisely, it is clear from a reading of clause 1(b) as a whole that the framers of the Brisbane POPs intended to draw a distinction between the role of permanent and fixed term employees working in Brisbane.

[189] The first sentence of clause 1(b)(i) confirms that both permanent and fixed term employees can be employed at the Port of Brisbane. To ensure that both categories of employee receive their leave entitlements, the POPs expressly requires a suitable number of permanent and fixed term employees to be engaged. The remainder of clause 1(b)(i) deals only with permanent (as opposed to fixed term) employees, as is made clear by use of the terms "permanent full time" and "permanent part time". The purpose of these provisions is to prescribe the minimum number of permanently employed Masters, Engineers and Ratings required (on duty and on leave) under the Agreement, being "15 Rostered Permanent full-time equivalent" and "1 Rostered Permanent Part Time 0.38" ("the 15.38 crew roster"). The use of the word "equivalent" in this context reflects the capacity for two permanent part-time employees to work on a job share basis with a combined roster equivalent to that of a full-time employee. The 15.38 crew roster is then set out in Schedule A to the Brisbane POPs.

[190] Clauses 1(b)(ii) and (v) then deal with the use of fixed term employees. Under clause 1(b)(ii), fixed term employees can be used to supplement the permanent crew described in clause 1(b)(i) for the purpose of providing relief. Under clause 1(b)(iv), fixed term employees can be used to supplement the roster to meet operational requirements.

[191] Clause 1(b)(iii) separately deals with the use of casual employees.

[192] In our view, the Deputy President was correct to find that the most coherent reading of clause 1(b) of the Brisbane POPS was one that recognised the distinction between the categories of permanent and fixed term employment. This distinction makes plain the intention of the parties to limit the use of fixed term employees in Brisbane to providing relief and otherwise supplementing the roster to meet operational requirements.

[193] The Deputy President also found that the Melbourne POPs[99] place a fetter on the number of types of employees Svitzer can engage to fill a roster, because they refer to "PFT Crews" and "PPT Crews" which are respectively defined as "permanent full-time crews employed under clause 15.2 of the EA" and "permanent part-time crews employed under clause 15.3 of the EA". The Deputy President stated that because a fixed term employee can only be employed on a permanent full time or permanent part-time basis, there is a degree of overlap between engagement under clause 15.4 and clauses 15.2/15.3. However, the Deputy President went on to conclude that the definitions of permanent full-time and part-time employment in the Melbourne POPs are a clear indication that the framers of the Melbourne POPs did not intend to include fixed term employees in crews designated in the Melbourne POPs as permanent full-time or permanent part-time crews. The Deputy President reached this conclusion notwithstanding his observation that the Melbourne POPs blurred the distinction between employees and crews, and that this distinction in other POPs supported a contrary finding.

[194] We agree with the Deputy President's construction of the Melbourne POPs. The framers of the Melbourne POPs distinguish between permanent and fixed term employees by defining permanent full-time (PFT) and permanent part time (PPT) crews by reference to the definitions of permanent full-time and permanent part-time employment in clauses 15.2 and 15.3 of the Agreement respectively, and as a result excluding fixed term employment which is separately defined in clause 15.4 of the Agreement. Under the heading "Rosters for PFT crews" the Melbourne POPs state that there will be 14 PFT crews allocated to Melbourne. The definition of PFT crews in the Melbourne POPs restricts Svitzer to employing permanent full-time crews comprising permanent full-time employees as defined in the Melbourne POPs.

[195] We accept that one consequence of this conclusion is that Svitzer is largely prevented from deploying fixed term employees to work in Melbourne. However, that is a matter about which the parties are entitled to reach agreement. Accordingly, the Deputy President was correct to find that the Melbourne POPs restricts the use of fixed term employees on its permanent rostered crew. In contrast, the Deputy President found that the Sydney, Newcastle and Western Port POPs do not fetter or limit Svitzer's right to engage fixed term employees. We now turn to consider those POPs.

[197] "LIR" is a reference to "leave in running arrangements" as provided for in clause 41.2B of the Agreement whereby employees do not have predictable leave. As set out above, the Sydney POPs confirms that Svitzer has the discretion "to appoint any fixed term employees from time to time similar to casual employment".

[198] Clause 1 of the Sydney POPs goes on to state that there will be a review one month prior to the end of the fixed term contracts to assess whether the contracts need to be extended on the same or a lower percentage or brought to an end. Changes required to the POPs or the roster as a result of changes to fixed term contracts will be limited to clauses 1, 4.1 and 4.7 of the POPs and subject to consultation.

[199] The final paragraph of clause 1 of the Sydney POPs sets out the number and types of crews and how they are designated in the roster. There are five "Primary Crews" comprised of 2 early and 2 late Primary Crews at Botany (designated as E1, E2, L1 and L2) and 1 Primary Crew at Sydney (designated S). There is further provision for three "Flexible Crews" (designated as F1, F2 and F3) and the 2 "Leave in running: 2 x 100% LIR (Fixed Term Contract based on the terms outlined above)" crews described above.

[200] Clause 2 of the Sydney POPs deals with availability and indicates that "in accordance with Schedule 1 of the EBA (Note 4) crew members are required to be on captive shifts in the Port" and goes on to state that this requires 1 emergency tug manned with crews to be available on 15 minutes notice. Note 4 in Schedule 1 - Salaries of the Agreement states: "The salaries in the above table are in full satisfaction of any requirement from the Port of Sydney for immediate response in ("Captivity") and Captive shifts in Port Botany, Sydney". To comply with this requirement, the roster provides for "captivity" and "captive hours" which means that for a specified number of shifts, primary crews (designated E1, E2, L1 and L2) are required to remain onboard the tugboat for the duration of the captive period other than when they are taking refreshment breaks, but while taking such breaks must be able to return to the tugboat within 15 minutes. Clause 2.6 of the Sydney POPs deals with a captivity recommencement date and 2.7 allows for captive shifts to be shared between E1 and E2 and L1 and L2 crews.

[201] Clause 5 of the Sydney POPs deals with relief and specifies an order of call with 9 rankings which commence with the LIR crews 1 and 2 and run through Flexi crews, the Sydney Crew, PPT/Job Share and casual employees before the 9th call which has three levels in the following order:

LIR on recall ...

Permanent full-time employees on a long break

Permanent full time employees on a short break

[202] There is a note to the effect that "Primary crew will be backfilled". Clause 5 goes on to deal with long term absence (sickness, workers compensation and long service leave). It provides that in such events, only duty periods for the 5 primary crew will be backfilled/replaced; that leave in running can be used for 14 days and then alternative arrangements must be made. Backfilling of other positions is at Svitzer's discretion and in accordance with operational requirements. Clause 5(c) states that "Full-time backfilling, replacement is made at Svitzer's discretion and on a case-by-case basis.

[203] In the absence of any indication to the contrary either in clause 1 or otherwise in the Sydney POPs, the reference to "15 full time crew" in the first paragraph of clause 1 of the Sydney POPs takes its ordinary meaning and encompasses employees who work on a full-time basis, whether they are permanent employees or employees engaged for a specified term or specified task.

[204] Accordingly, the Deputy President's conclusion in relation to the Sydney POPs was correct.

[205] As noted by the Deputy President, the Newcastle POPs[101] contain a schedule stipulating that the following "permanents" will be employed in Newcastle[102]. The schedule provides for 32 Masters, 32 Engineers and 32 GPH (General Purpose Hands) to be employed to work a 12 hour / 9 tug roster. The Newcastle POPs also provide for specified numbers of "PPTs" to be employed including percentage minimum guarantees of full-time salaries for those employees. Changes in PPT manning are required to be agreed by Management and Delegates. In addition to the matters identified by the Deputy President at paragraph [116] of his Decision, we note that the schedule states: "The roster that applies will be a roster in Attachment 1 & 2." Attachment 1 is a 32-crew roster that allocates crews to tugs in accordance with a schedule that names each crew member while Attachment 2 is a 32 Crew Daily Allocation Matrix.

[206] Clause 2 of the Newcastle POPs states that Attachment 1 describes rosters and principles and that: "The crew allocation in Attachment 2 shall set out crew allocation to tugs as operational requirements dictate". Accordingly, the effect of Attachments 1 and 2 is to set rosters for named crew members and to allocate crews to particular tugs, albeit with flexibility provided for employees to change between tugs in circumstances outlined in clause 8.

[207] The relief arrangements set out in clause 16 of the Newcastle POPs are said to be in accordance with clause 41.2.6 of the Agreement (which deals with fatigue management) and to provide for an order of call from 1st to 7th for Permanent Part Time Crew; Casuals; Permanent Part Time Crew on leave; Permanent Full Time employees on 1 week rostered leave; Permanent Full Time employees on 3 weeks rostered leave; Job Share employees; VR Casual. There are also provisions for scratch crews to be provided by employees on a voluntary basis only and for the last crew member in the relevant rank to roll forward to fill the gap and for scheduling shift length for casual or rostered off crew members engaged for relief, after they have worked to provide relief. It is implicit that these arrangements would apply to short term or unplanned absences of the kind referred to in clause 41.2.7(ii) of the Agreement.

[208] The Newcastle POPs make no mention of employees engaged for a specified period of time / task and there is no indication that the engagement of such employees is to be limited in any way or that fixed term employees who work on the same basis as permanent employees cannot be engaged to fill the 32 permanent positions for each classification of employees set out in Schedule 1 to the Newcastle POPs. The reference in clause 16 of the Newcastle POPs to permanent full-time and permanent part-time employees, is in relation to relief requirements. There is no reason why fixed term employees cannot be engaged to fill a permanent position, either full-time or part-time. As we have noted, the Agreement does not restrict the circumstances in which fixed term employees may be engaged or the duration of the engagement. Absent an express or objectively ascertainable provision in the Newcastle POPs to the contrary, the Newcastle POPs cannot be construed to limit fixed term employment. Further, the fact that the Newcastle POPs list all employees in the 32-crew roster does not indicate an intention to replace each crew member who ceases employment with an employee in the same category. The listing of crew members indicates that the three employees who constitute a crew are rostered together and may be required to work on a different tugboat in the circumstances set out in clause 8.1 which contemplates an entire crew changing tugs rather than individual members.

[209] For these reasons the Deputy President's conclusion that the Newcastle POPs do not fetter the manner in which Svitzer staffs its 32 full time crew and that fixed term employees can be engaged in those positions, is correct.

[211] In arriving at our conclusions, we accept the evidence of the witnesses for the Unions that the Unions and their members negotiating the POPs genuinely believed that they were agreeing that the numbers of full-time positions and employees would be maintained as permanent positions in return for the guarantees they gave to maintain continuity of operations and to meet the needs of Svitzer's customers. As Counsel for Svitzer accepted in the appeal, the consequences of the Company's argument might not be consonant with the will of the people who agreed on the terms of a particular POPs.[103]

[212] We also accept the Company's evidence that the matter of restricting the use of fixed term employees was not raised by the Unions in the negotiations for the Agreement or the POPs. In our view, this is understandable in the circumstances whereby fixed term employees had been used to replace permanent employees who were absent for reasons including illness or long service leave. In this regard, we accept that had the parties negotiating each of the POPs turned their minds to the circumstances in which positions that they had designated as "permanent" or "full time" could be filled by employees engaged for a specified period of time / task, the POPs may well have been drafted with more precision and in a way that avoided the present situation.

[213] However, we agree with the Deputy President that there is insufficient evidence objectively establishing that that there was a meeting of the minds or a consensus, much less that any of parties to the Newcastle or Western Port POPs thought about the issue of whether employees engaged for a specified period of time / task could fill positions designated in POPs in that manner so as to establish a common understanding sufficient to support the construction advanced by the Unions. We do not accept that the fact Svitzer had only engaged fixed term employees to replace permanent employees who were temporarily absent for various reasons indicates anything other than mutual inadvertence or that no one had thought about the possibility that vacancies caused by permanent employees leaving employment, could also be filled by fixed term employees.

[214] As we have noted, while a construction of an agreement that avoids inconvenience or injustice may reasonably be strained for, we are not free to give effect to some anteriorly derived notion of fairness regardless of the terms of the Agreement and the POPs.[104] We also note that the POPs are not set in stone and if either party seeks to amend the POPs there is a process set out in clause 41.4 of the Agreement. Further, where consensus on the proposed change cannot be reached, notice may be given requiring the change to be implemented and an application may be made to the Commission in accordance with the Dispute Resolution Procedure. In those circumstances the fairness of a position taken by either party may be relevant to the resolution of the dispute.

[215] We agree with the Deputy President's conclusion in relation to clause 15.1.1 of the Agreement. The clause is permissive and allows for other provisions of the Agreement or the POPs to limit Svitzer's discretion to engage employees in each of the categories of employment. Clause 41 of the Agreement provides for POPs to contain detailed provisions in relation to particular ports which may include rosters, the categories and classifications of employees who will be employed or engaged to work the rosters (including the name of each employee), how employees will be allocated to rosters or to tugboats, arrangements for taking leave and for relief in circumstances of absences of any kind. None of the disputed POPs contain any provision in relation to rostering or other permissible matters that is inconsistent with the Agreement and the terms of clause 5.3.1 are not engaged in relation to the disputed provisions of the Agreement and the manner in which the matters subject of the dispute are dealt with in the POPs.

[216] We do not agree with the Deputy President's conclusion that employees engaged for a specified period of time / task are permanent full-time (and by extension may be permanent part-time) employees.[105] The Agreement provides for four different categories of employment that are separately defined. Fixed term employment defined in clause 14.4 is not permanent employment as defined in clauses 15.2 and 15.3. An employees engaged for a specified period of time / task as defined in clause 15.4 of the Agreement is not a "kind of full-time permanent employee"[106]. Permanent employment is defined in clauses 15.2 and 15.3 of the Agreement in a manner that excludes employment for a specified period of time. However, we do accept that POPs may allow employees engaged for a specified period of time / task to fill positions designated as "permanent" in a roster at a particular port. We also accept that POPs may limit the discretion of Svitzer to engage employees for a specified period of time / task in particular positions at a port.

[217] The primary issue in dispute is whether any of the POPs considered by the Deputy President preclude Svitzer from replacing an employee in a position designated as "permanent" with an employee engaged for a specified period of time / task. In relation to this question, and although for partially different reasons, we agree with the Deputy President's conclusions in relation to the Brisbane and Melbourne POPs at paragraphs [115], [117], [119], [125] - [126] and [131] of the Decision respectively. We also agree with each of the Deputy President's conclusion in relation to the Sydney, Newcastle, and Western Port POPs and that those POPs do not preclude that Svitzer from replacing any employee or filling any position with an employee engaged a specified period of time / task at paragraphs [115], [117] and [119] respectively.

Construction, Forestry, Maritime, Mining and Energy Union v Svitzer Australia Pty Limited T/A Svitzer Australia [2023] FWCFB 259

At a glance

Court

Decision date

Source

Judgment (289 paragraphs)

Construction, Forestry, Maritime, Mining and Energy Union v Svitzer Australia Pty Limited T/A Svitzer Australia [2023] FWCFB 259 (18 December 2023)

Parties

Legislation Cited (2)

Cases Cited (14)