Fair Work Act 2009

s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union

Appeal against decision [2019] FWC 1745 of Deputy President Binet at Perth on 31 May 2019 in matter number C2018/6266.

Decision of Vice President Hatcher and Commissioner McKenna

[1] Maersk Crewing Australia Pty Ltd (Maersk) has appealed against a decision issued by Deputy President Binet on 31 May 2019[1] (Decision). There is a question as to whether permission to appeal is required for the appeal, which we deal with below. The Decision was made in resolution of a dispute between the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Maersk pursuant to arbitral powers conferred on the Commission by clause 10 of the Maersk Crewing Australia Pty Ltd Maritime Offshore Oil and Gas Industry (Integrated Ratings, Cooks, Caterers and Seafarers) Enterprise Agreement 2018 (Agreement). Maersk is a shipping company, and the CFMMEU represents seagoing employees employed by Maersk. The dispute concerned staffing levels on a new type of vessel operated by Maersk to service offshore oil and gas platforms, the SALT 200 Starfish vessel. Maersk had put into service two such vessels (Vessels), and the CFMMEU claimed that such vessels should carry an additional steward when the number of persons on board (POB) is 10 to 18. The proceedings were initiated by the CFMMEU by way of an application made pursuant to s 739 of the Fair Work Act 2009 (FW Act). The Deputy President determined in favour of the CFMMEU's position. Maersk's notice of appeal contends that the appeal should be upheld and the Decision quashed on four grounds which agitate both jurisdictional and merit issues. They are detailed later in this decision.

[2] The dispute resolution procedure in clause 10 of the Agreement is as follows:

10.1 When an industrial dispute arises, including a matter arising under this Agreement or the NES, this clause sets out the procedure to resolve the dispute.

Where a matter arises when the Employee(s) are on board a Vessel, the matter will in Master the first instance be discussed between the Employee(s) and the.

Where a matter arises when the Employee(s) are not on board a Vessel, the matter will in the first instance be discussed between the Employee(s) and the Employer's nominated representative.

The matter will be referred for discussion between the Employee, the Employee's Union delegate or other nominated representative and the Master and/or Employer.

The matter will be referred for discussion between the appropriate Federal or Branch Union Official or other nominated representative and the Employer's Human Resources or Industrial Relations Manager.

In the event that the preceding steps have failed to resolve the matter and/or dispute, any person bound/covered by this Agreement or nominated other representative may refer the dispute to the FWC for conciliation and/or arbitration pursuant to Section 739 and Section 595 of the Fair Work Act.

10.2 Where the matter remains unresolved, the FWC may deal with the dispute in two stages:

(a) The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and

(b) If the FWC is unable to resolve the dispute at the first stage, the FWC may then:

(ii) Make a determination that is binding on both of the parties.

10.3 While the parties to the dispute are trying to resolve the dispute using the procedures in this clause:

(a) An Employee must continue to perform their work as they would normally, unless they have a reasonable concern about an imminent risk to their health or safety; and

(b) An Employee must comply with a direction given by the Employer to perform other available work at the same workplace, or at another workplace, unless:

(ii) Applicable occupational health and safety legislation would not permit the work performed.

10.4 The parties to the dispute agree to be bound by a decision made by the FWC in accordance with, this clause, but note that a decision of a single member of the FWC can be appealed to a Full Bench of the FWC.

10.5 An Employee who is party to the dispute or the Employer may appoint another person, organisation or association to accompany and/or represent them for the purposes of the procedures in this clause.

[3] Clause 27.5 of the Agreement deals with "Catering Benchmark Manning" in the following terms:

(a) The following benchmark manning is agreed for all Schedules, except for Schedule 4.

Nil (no caterer is provided unless there is a 10th person send to the Vessel)

1 Chief Cook, 1 Cook, 1 Chief Steward, 1 Caterer and 2 Cook-Caterers

1 Chief Cook, 1 Cook, 1 Cook-Baker, 1 Chief Steward, and 3 Caterers

1 Chief Cook, 2 Cooks, 1 Cook-Baker, 1 Chief Steward, and 3 Caterers

1 Chief Cook, 1 Cook-Baker, 1 Cook, 1 Chief Steward, and 4 Caterers

1 Chief Cook, 2 Cooks, 1 Cook-Baker, 1 Chief Steward, and 5 Caterers

Apply one caterer per 12.5 POB, where POB exceed 111.

(b) Should there be disagreement, the numbers will be determined according to the criteria below:

(i) Size and configuration/layout of the accommodation and deck levels;

(c) When a Vessel is engaged on installation or modification work of a 24-hour operational nature and covered by Schedule 8 Specialist Vessel, if an additional Employee is required due to the hours of work requirements of STCW 95, a cook/caterer will also be engaged for this time.

[4] Schedules 1 to 10 of the Agreement apply to separate types of vessels operated by Maersk, and, among other matters, set rates of salary and minimum crewing numbers for each type of vessel. Schedule 1 applies to "Support Vessels", and is divided for the purpose of specification of salaries into two divisions: Division 1 covers support vessels with main propulsion engines generating up to 8,999 BHP, and Division 3 applies for BHP above 8,999. The general crewing prescription for Schedule 1 vessels, subject to some specified exceptions, is "5 x IRs or, at the Employer's discretion, where the catering benchmark does not apply, then 4 x IRs and 1 x cook". "IRs" are Integrated Ratings (IRs). It is apparent that where clause 27.5 applies, Schedule 1 requires a minimum crew of five IRs. Schedule 2 applies to "Supply Vessels; Seismic Support; FPSO Offtake Supply/Support Vessels classified by their length measured in metres. Its minimum crewing prescription requires an additional IR.

[5] In the Decision, the Deputy President first dealt with two "objections" to the arbitration of the dispute the subject of the CFMMEU's s 739 application. The first was that the application was vexatious because the issue of staffing of the Vessels had already been resolved arising out of a number of earlier matters that were before the Commission. The second was that, alternatively, if there was a new dispute before the Commission, the Commission had no authority to arbitrate because the CFMMEU had not complied with Step 1 of the dispute resolution procedure in clause 10.1 of the Agreement. In this respect, it was contended that no employee had raised the issue in dispute with the Captain of either of the Vessels.

[6] In relation to the first of these "objections", the Deputy President outlined the factual background against which it was advanced. On 15 June 2018 the CFMMEU had filed a s 739 application (C2018/3287) which raised an issue concerning whether the Vessels were Schedule 2 rather than Schedule 1 vessels for the purpose of the Agreement, which affected the minimum staffing number of IRs prescribed by the Agreement. On 29 June 2018, Maersk filed an application (RE2018/763) alleging that a CFMMEU organiser, Mr George Gakis, had misconducted himself whilst exercising his right of entry; and on 13 July 2018 the CFMMEU filed a further s 739 application concerning a dispute about the appropriate income protection provided under the Agreement.[2] Eventually there was an agreement reached between the CFMMEU and Maersk in settlement of all three matters. The substance of the settlement was that, in relation to C2018/3287, it was agreed that a supernumerary part-time steward who had been added to each of the Vessels when they were first introduced would be removed and an IR additional to the number prescribed by Schedule 1 of the Agreement would be removed. As to the other matters, it was agreed that they would be discontinued.[3]

[7] In her consideration of this "objection", the Deputy President noted that Maersk had not indicated to the CFMMEU in any correspondence concerning the CFMMEU's claim for an additional steward before the Commission proceedings were initiated that this had been resolved by the earlier agreement.[4] The Deputy President also noted that Mr David Kearney, the Operations Manager of Maersk who gave evidence in the proceedings, had conceded in cross-examination that the CFMMEU's claim for an additional steward was a different one to the earlier dispute "involving a claim for an extra IR due to the engine size of the vessels".[5] The Deputy President's conclusion was as follows:

"[32] I am of the view that the Dispute the subject of this Application is a separate and different dispute to the one the parties resolved albeit that the resolution of one (removal of the supernumerary part time Steward) may have triggered the other. In the circumstances I am not satisfied that the Application is vexatious or that it should be dismissed."

[8] In relation to the second "objection", the Deputy President referred to evidence given by Mr Justin Knight, who is employed as a cook on one of the Vessels, that he had raised the need for additional catering and/or cleaning support with his Captain at numerous times, including in safety meetings and in general conversation; and it had likewise been raised at consultative meetings between CFMMEU delegates and Maersk representatives and in emails he had sent to Maersk representatives at its international headquarters in Copenhagen, Denmark.[6] The Deputy President concluded:

"[37] None of the Captains were called as witnesses to confirm that the issues the subject of this Application had not been raised with them.

[38] Despite being invited to do so prior to the Application being filed there is no documentary evidence that Maersk indicated that it believed that the DRP had not been complied with or that Maersk had any objections to the matter being referred to the FWC.

[39] Based on the evidence before me I am satisfied that the parties have complied with the DRP and that the Application is properly before me."

[9] The Deputy President then turned to the substance of the dispute and described the evidence given by Mr Knight and Mr Kearney for the CFMMEU and Maersk respectively. It was noted that Mr Knight had been employed as a cook in the offshore oil and gas industry for the last 11 years[7], while Mr Knight conceded that he had not worked as a Captain on any Maersk vessel for more than seven years, had never worked on the Vessels, and had never been on either of the Vessels when they were operational, only in port.[8] The Deputy President also recorded a concession by Mr Kearney that "someone on board the Vessels would have a more accurate knowledge of the cleaning regime on board the Vessels than himself,"[9] and stated that the majority of Mr Kearney's evidence was based on information provided to him by unidentified Captains.[10] The Deputy President then stated the following general conclusions about the evidence of Mr Knight and Mr Kearney:

"[56] Where their evidence has differed I have preferred the evidence of Mr Knight who has more recent direct personal experience on board the Vessels while noting that if an extra steward is appointed Mr Knight stands to benefit personally as the Steward will be available to assist Mr Knight perform his duties.

[57] A portion of Mr Kearney's evidence dealt with the reduced catering, cleaning and upkeep requirements when a vessel has a lower POB count as opposed to the requirements when a vessel has a POB which is higher. The workload variation associated with a higher or lower POB is dealt with by the sliding scale of catering manning in the table in clause 27.5(a) of the Agreement. It is not of assistance when determining the catering manning of vessels with the same POB which is the task I'm required to undertake in this Application."

[10] The Deputy President then considered and made findings about each of the criteria set out in clause 27.5(b)(i)-(viii). In relation to (i) Size and Configuration/Layout of the accommodation and deck levels, (ii) Public areas, (v) Laundry, service and equipment, (vi) Galley layout and equipment and (viii) Duties and STCW 95, the Deputy President concluded that these criteria weighed in favour of an extra steward being added to the crew of the Vessels when the POB was 18 or fewer. In relation to (iii) Number of cabins/berths to service and (iv) POB at any given time, the Deputy President concluded that she was not satisfied that these factors weighed in favour of the extra steward. As to (vii), 12 or 24-hour operations, the Deputy President said:

"[105] To the extent that the Vessels conduct 24 hour operations then this is a factor in favour of an increase in the catering manning level. I explored with the parties the possibility that the additional catering manning associated with anchor handling and continuous ROV operations be added to the crew only for the duration of those activities however Maersk have indicated that it is not logistically and/or financially practicable to add or remove an extra Steward during a swing."

[11] Having considered each criterion, the Deputy President then stated the following overall conclusions (omitting footnote):

"[133] Mr Kearney gave evidence in relation to the cost of engaging another Steward and the financial impact this would have on Maersk surprisingly, as was conceded by Mr White, this is not a matter which clause 27.5(b) of the Agreement permits being taken into account when determining the catering benchmark manning for the Vessels.

[134] The majority of the criteria which are required to be considered when determining the catering benchmark manning for the Vessels when the parties disagree weigh in favour of the addition of a Steward to the crew of the Vessels when the POB is 18 or less. The need for an extra Steward is most pressing when the vessel undertakes 24 hour operations. Had Maersk been able to facilitate this occurring then that could well have been the basis of an industrial resolution to this matter.

[135] Taking into account Maersk's submission that it is not logistically possible to facilitate the addition of a Steward only during 24 hour operations the weight of the criteria to be considered when determining the catering benchmark manning for the Vessels when the parties do not agree weighs in favour of the addition of a Steward to the crew of each Vessel when the POB is less than 18."

[12] Maersk submitted that the relevant effect of clause 10.4 of the Agreement was that it had a right of appeal and there was no anterior requirement for the grant of permission to appeal. In the alternative, should permission to appeal be required, it submitted that permission should be granted because:

• the application before the Deputy President ought to have been dismissed under s 587 of the FW Act;

• the Deputy President did not have jurisdiction to arbitrate the dispute under clause 10 of the Agreement;

• clause 27.5 of the Agreement was in the same or similar terms to equivalent provisions in a large number of enterprise agreements applying to employers operating in the offshore oil and gas industry;

• parties should be encouraged to resolve matters without resort to the Commission and to comply with the terms of such resolutions;

• parties should be encouraged to properly progress matters in dispute under an enterprise agreement in accordance with the agreed steps in the applicable dispute settlement procedure; and

• having regard to the totality of the evidence, the Deputy President's conclusion that the criteria in clause 27.5(b) favoured the engagement of an additional steward of the Vessels was manifestly unjust.

[13] The first two grounds of appeal in Maersk's notice of appeal challenge the Deputy President's conclusions concerning Maersk's "objections" to the arbitration of the dispute the subject of the CFMMEU's application. In relation to the first objection, Maersk submitted that the evidence of Mr Kearney concerning the resolution of the earlier 2018 disputes before the Commission was not controverted, and demonstrated that the issue of staffing generally on the Vessels had been settled. The Deputy President took too narrow and technical an approach in focusing on the particular matters identified in the various applications before the Commission and did not engage with the relevant issue which was the close connection between the subject matter of the 2018 settlement and the CFMMEU's application before the Deputy President. The Deputy President's conclusion was contrary to the evidence of Mr Kearney, and also contrary to the uncontroverted evidence of Ms Melaine Nottle, Maersk's Human Resources Manager, that she had raised the earlier settlement in a telephone conversation with Mr Gakis on 27 August 2019. The appropriate course should have been for the Deputy President to dismiss the CFMMEU's application pursuant to s 587 or on some other basis.

[14] As to the second objection, Maersk submitted that while there was some evidence that went to whether there had been a discussion of the nature contemplated by Step 1 of the dispute resolution procedure, there was no evidence nor did the Deputy President find that any such discussion had occurred before the CFMMEU progressed the dispute through the subsequent steps in the procedure. Accordingly the procedure was not followed in accordance with its terms, and the Deputy President erred in concluding otherwise. The Deputy President also erred in relying upon a finding that Maersk had not raised any issue about compliance with the dispute resolution procedure before the CFMMEU lodged its application, which was both irrelevant and factually incorrect.

[15] Maersk's third ground of appeal challenges the substantive conclusions reached by the Deputy President concerning the application of clause 27.5 to the facts of the matter on a wide range of grounds, including her findings as to every one of the specified criteria. The matters emphasised in Maersk's submissions were as follows:

(1) The Deputy President erred in the construction of clause 27.5(b) by concluding that the "majority" of criteria favoured a particular outcome, whereas the better approach was to consider the criteria as a whole including any interaction between the criteria. Additionally, the Deputy President erred in taking the approach that the number of POB was dealt with under clause 27.5(a) and did not need to be taken into account under clause 27.5(b). Clause 27.5(b)(iv) was a clear indication that POB must be considered. The evidence was that when the Vessels operated with fewer than 19 POB, they usually had 13, which was at the lower end of the 10-18 POB bracket in clause 27.5(a), and the lower level of POB in that context needed to be taken into account but was not.

(2) The Deputy President's preference for the evidence of Mr Knight over that of Mr Kearney was erroneous because it was influenced by the perception that Mr Knight had the opportunity of observing things when working on the Vessels, when his evidence extended to things occurring in areas which, as a cook, he did not work and to work functions which he neither performed nor supervised. Mr Kearney's evidence as the senior manager responsible for all the operational aspects of vessel operations was highly relevant and should not have been dismissed on a wholesale basis. The Deputy President should have accepted Mr Kearney's evidence that the additional IRs on the Vessels meant that they could perform the work normally required of an IR including cleaning and maintenance. The Deputy President erred by giving excessive weight to evidence given by Mr Knight about matters beyond his direct experience and in reliance upon information supplied by other unknown persons. The Deputy President also erred in accepting the evidence of Mr Knight that cleaning was an "ancillary" responsibility of IRs.

(3) In relation to each of the specified criteria in clause 27.5(b), using the lettering designations in the clause:

(i) The Deputy President erred in finding that this criterion favoured the extra steward on the bases of: an incorrect preference for the evidence of Mr Knight; an incorrect construction of clause 27.5(b); a failure to give sufficient weight on the evidence that IRs are required to perform cleaning work and that additional IRs are engaged; a failure to have regard or give sufficient weight to the fact that the Vessels are more technologically advanced than older vessels and require less maintenance and upkeep; and an irrelevant consideration of the amount of cleaning that might be required when the Vessels got older.

(ii) The Deputy President erred in finding that this criterion favoured the extra steward on the basis of an incorrect preference for the evidence of Mr Knight; an incorrect construction of clause 27.5(b); and a failure to give sufficient weight on the evidence that IRs are required to perform cleaning work and that additional IRs are engaged.

(iii) The Deputy President erred, and should have found, that this criterion positively weighed in favour of a decrease in the catering on the catering staffing levels, or alternatively weighed against an extra steward being added to the crew. The comparatively smaller number of cabins/berths on the Vessels meant less servicing was required.

(iv) The Deputy President erred, and should have found, that this criterion positively weighed in favour of a decrease in the catering on the catering staffing levels, or alternatively weighed against an extra steward being added to the crew, because the number of POB was usually only 13, which was at the lower end of the 10-18 scale.

(v) The Deputy President erred in finding that this criterion supported an additional steward, in that she failed to take into account or give sufficient weight to the evidence that IRs performed cleaning work and there were additional IRs on the Vessels. The finding was not supported by any sufficient evidence relating to the current laundry arrangements of Schedule 1 vessels, and the finding was also contrary to the evidence that the Vessels were ergonomically designed and technologically advanced.

(vi) The Deputy President erred in finding that this criterion supported an additional steward, in that she failed to take into account or give sufficient weight to the evidence that IRs performed cleaning work and that there were additional IRs on the Vessels.

(vii) The Deputy President erred in finding that, to the extent to which the Vessels conducted 24-hour operations, this favoured an additional steward in that she failed to make a finding as to the extent to which the Vessels conducted 24-hour operations, failed to take into account or give sufficient weight to the evidence that the Vessels are predominantly in standby mode when they have fewer than 19 POB, took into account the irrelevant consideration that the Deputy President had explored with the parties whether the catering staffing could be increased only for the duration of anchor handling and continuous ROV operations, and failed to take into account or give sufficient weight to the evidence that IRs performed cleaning work and that there were additional IRs on the Vessels.

(viii) The Deputy President erred in finding that the duties of employees are more complex and onerous on the Vessels than on comparable vessels and that this weighed in favour of an extra steward, in that the Deputy President incorrectly preferred the evidence of Mr Knight, failed to take into account or give sufficient weight to the evidence that IRs performed cleaning work and that there were additional IRs on the vessels; failed to have regard or give sufficient weight to the evidence that the Vessels are more technologically advanced than older vessels and require less maintenance and upkeep; and failed to take into account or give sufficient weight to the evidence that for the greater part of the time when the Vessels perform towing and handling work, the crew including the IRs are inside and not permitted onto the back deck of the Vessels.

[16] The fourth ground of appeal is that it can be inferred from the Deputy President's reference in paragraph [134] of the Decision to what might have been done by Maersk to facilitate an "industrial resolution" that she had regard to matters other than what is specified in clause 27.5 (b) of the Agreement.

[17] The CFMMEU submitted that:

• clause 10.4 of the Agreement did not displace the requirement in s 604 of the FW Act for permission to appeal;

• the documents which constituted the settlement of the three dispute matters earlier in 2018 do not disclose any agreement in the context of clause 27.5(b) of the Agreement;

• alleged non-compliance with the dispute resolution procedure was not identified by Maersk as a fact in issue in accordance with the directions of the Deputy President, and accordingly the evidence in chief of the CFMMEU did not deal with this issue;

• in any event, the evidence of Mr Knight and the documentary evidence supports that Step 1 of the procedure was complied with;

• in relation to the construction of clause 27.5(b), whether the Deputy President was required to consider the "majority of the criteria" or the "weight of the criteria" was an exercise in semantics, and whether they were weighed together or considered separately could not affect the outcome;

• the Deputy President correctly considered that the direct evidence of Mr Knight, who worked on the Vessels, was preferable to that of Mr Kearney who did not;

• Maersk's third appeal ground simply sought to re-litigate every matter which Maersk raised at first instance, and the fact that Maersk disagreed with the findings made by the Deputy President as to these matters did not give rise to a valid appeal; and

• the fourth appeal ground was based on a misreading of the Deputy President's decision in paragraph [134], which related to the conclusion at paragraph [105] that, had Maersk been able to provide an additional steward only for 24-hour operations, the additional steward would only have been required for those times.

[18] Absent a provision to the contrary in an enterprise agreement, the appeal procedure in s 604 of the FW Act, including the anterior requirement for the grant of permission to appeal, will apply to decisions made by single Commission members exercising a power of private arbitration authorised by the dispute resolution procedure in the relevant agreement.[11] This default position may be altered by contrary provisions in an enterprise agreement which may entirely exclude any capacity to appeal, so that the decision of the single member of the Commission is final and binding, or alternatively establish an independent right of appeal so that the requirement for permission to appeal in s 604 is not applicable.

[19] In this case, Maersk contends that clause 10.4 of the Agreement, which relevantly provides that "The parties ... note that a decision of a single member of the FWC can be appealed to a Full Bench of the FWC", is a contrary provision in the latter category which establishes an independent right of appeal. It relies upon the Full Bench decision in Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia[12] to support its position in that respect. However we do not consider that decision to be of particular assistance. The dispute resolution clause in that case appears to have been relevantly similar to that here, but the actual terms of the clause are not set out in the decision and their proper interpretation was not given any consideration. Instead, the Full Bench proceeded upon the agreed position of the parties that the agreement in question established an independent right of appeal and thus the requirement for permission to appeal in s 604 of the FW Act was not applicable.[13]

[20] We were also taken to the Full Bench decision in Farstad Shipping (Indian Pacific) Pty Ltd v Maritime Union of Australia.[14] In the agreement under consideration in that matter, the dispute resolution procedure contained a provision referring to appeals which was relevantly the same as clause 10.4 of the Agreement.[15] Both parties in that matter contended that the provision in question conferred an independent right of appeal such that permission to appeal was not required. The Full Bench was content to proceed on that basis (and ultimately dismissed the appeal), but noted its reservations as to the agreed position (footnotes omitted):

"[23] Both parties contended, on the basis of the Full Bench decision in Metropolitan Fire and Emergency Services Board v United Firefighters' Union of Australia, that clause 13.6 of the Agreement confers an independent right of appeal (in the sense discussed in AMWU v Silcar Pty Ltd) such that permission to appeal is not required under s.604 of the FW Act. We would not regard it as beyond argument that the words "The parties ... note that a decision of a single member of the FWC can be appealed to the full bench of the FWC" confer such a right of appeal, but given that no party contended that MFESB v UFU (in which the parties likewise agreed that permission to appeal was not required) was incorrectly decided, we will proceed on the basis that Farstad has a right of appeal and that permission to appeal is not required."

[21] In this appeal, as earlier stated, the CFMMEU contends that s 604 applies to the appeal and accordingly that permission to appeal is required, and therefore it is necessary for us to determine the question.

[22] We consider that clause 10.4 does not establish an independent right of appeal. There is no reference to there being a "right" of appeal; in this respect the position may be contrasted to that in AMWU v Silcar Pty Ltd,[16] where a conclusion that an independent right of appeal was established by the relevant agreement was founded upon a provision which stated that a single member's decision was binding "subject to either party exercising a right of appeal against the decision to a Full Bench" (underlining added)[17] Rather, the language of clause 10.4 is indicative of a recognition by the parties that there exists a capacity to appeal that resides outside the terms of the Agreement. Thus, the parties "note" - that is, observe - that a party "can" appeal a decision to a Full Bench. This language does not suggest the establishment in the Agreement of an entitlement to appeal, but rather is consistent with the default position that, in conferring dispute resolution powers on the Commission, the parties to the Agreement have taken the Commission as they find it, including the conditional capacity to appeal to a Full Bench of the Commission found in s 604 of the FW Act.[18]

[23] Accordingly we conclude that any appeal against the Decision must be brought pursuant to s 604 of the FW Act, and that permission to appeal is therefore required.

[24] The first appeal ground concerns Maersk's contention that the Deputy President erred in rejecting its first contention that, as the subject matter of the s 739 application before her had been resolved in the settlement of an earlier dispute, the application should be dismissed under s 587 of the FW Act.

[25] It is sufficient to make two observations about this appeal ground. The first is that the exercise of the discretionary power to dismiss an application as vexatious under s 587(1)(b) of the FW Act involves two steps: firstly, the formation of an evaluative judgment that the application in question may be characterised as "vexatious" - that is, it was an unmeritorious application brought for the purpose of annoying or harassing the respondent - and, secondly, that the discretion should be exercised in favour of dismissal. Assuming, in favour of Maersk, that s 587 is applicable to dispute resolution proceedings arising from and authorised by clause 10 of the Agreement, there was no evidence before the Deputy President that the application was brought for a vexatious purpose or that the CFMMEU was other than genuine in its endeavours to gain an additional steward on the Vessels when the staffing levels were in the 10-18 range. Maersk's case taken at its highest was incapable of demonstrating that the application was vexatious.

[26] We note for completeness that Maersk contended that the CFMMEU's application could have been dismissed by the use of other, unspecified powers. However it has not been demonstrated that Maersk had either under the FW Act or clause 10 of the Agreement any entitlement to have the application dismissed which it was denied; rather the case rises no higher than that the Deputy President did not make the evaluative judgment about the nature of the application which Maersk would have liked her to make.

[27] The second observation is that the settlement upon which Maersk relies had nothing to do with the question of an additional steward. As earlier explained, the earlier dispute application lodged by the CFMMEU in matter C2018/3287 involved a contention that the Vessels should be categorised under Schedule 2 rather than Schedule 1, with the result that an additional IR was required in the crew. The settlement of that matter and the other two disputes extant that time is set out in an email exchange between Mr Kearney on behalf of Maersk and Mr Danny Cain, the relevant CFMMEU official on 19-20 July 2018. Mr Kearney's email of 19 July 2019 proposes that all three applications be discontinued on the basis that the Vessels would have a minimum crewing "with no further restrospective claims to arise" of five IRs and one cook. Mr Cain indicated that this was agreed on behalf of the CFMMEU in an email in reply the following day. This effectively amounted to a concession concerning the CFMMEU's claim for an additional IR (although it does not appear to have been conceded that the Vessels were Schedule 2 vessels rather than Schedule 1 vessels). The settlement did not purport to affect the operation of clause 27.5, which in paragraph (a) prescribed additional catering staff where POB was 10 or more, and which in paragraph (b) allowed for the numbers of catering staff to be determined according to the specified criteria where there was a disagreement. Nor did the settlement involve the CFMMEU acceding to Maersk's removal of the part-time steward's position which had been placed on the Vessels during an initial trial period, although it may be accepted that Maersk separately told the CFMMEU that it intended to do this. In short, there is no basis to conclude that the settlement barred the CFMMEU from pursuing a claim for an extra steward under clauses 27.5 and 10 of the Agreement.

[28] For these reasons, we do not consider that the first ground of appeal has sufficient merit to justify the grant of permission to appeal.

[29] In relation to the second ground of appeal, it may be accepted that the dispute resolution procedure in clause 10.1 proceeds on the basis that each specified step must have been taken and have failed to resolve the dispute before the requirement to undertake the next step arises. Step 4, which allows a party to refer a dispute to the Commission for conciliation and/or arbitration, requires that the preceding steps "have failed to resolve the matter and/or dispute". This necessarily implies that Steps 1-3 have been undertaken in the manner and order prescribed. However no particular technicality or formality needs to attend the discussions required for each step provided that communications occur at each level in a genuine attempt to raise and resolve the dispute in question.[19]

[30] Maersk's second ground of appeal is advanced on the basis of an asserted lack of evidence that Step 1 had been undertaken before Step 2. We do not consider that permission to appeal should be granted in respect of this appeal ground because the issue was not raised in this way in the proceedings before the Deputy President. In its s 739 application filed on 7 November 2018, which used the standard Form F10, the CFMMEU asserted in response to the inquiry at paragraph 2.4 as to the steps which had been taken to resolve the dispute under the dispute resolution procedure, that "The matters in dispute have been progressed through 1-3 of the Dispute Resolution Procedure and are ready to be referred to the FWC for assistance". In its response to the application filed on 23 November 2018, Maersk did not contend that there had been any failure to comply with the dispute resolution procedure. Maersk did not identify compliance with the dispute resolution procedure as a fact in issue as required by the Deputy President's directions for the hearing. The first time this issue was raised was in a written submission dated 1 March 2019, in which Maersk asserted that no employee had raised "workload issues" with the Captain of his or her vessel, and accordingly that the dispute resolution procedure had not been complied with. The same submission was made in Maersk's closing submission but with greater specificity, namely that what was required by Step 1 was not undertaken at all. The proposition now advanced was simply not raised before the Deputy President, other than as here set out.

[31] As earlier recounted, Mr Knight gave evidence that he had raised the issue in dispute with his Captain on numerous occasions, as well as at consultative meetings with Maersk and in emails to Maersk's head office, and the Deputy President accepted this as evidence of compliance with Step 1 of the dispute resolution procedure. As the Deputy President observed, no Captain was called to give evidence to controvert this. It was not submitted in the appeal that it was not available to the Deputy President to accept this evidence. The acceptance of that evidence resolved the limited issue of alleged non-compliance with the dispute resolution procedure that was actually raised at first instance. Because the submission now advanced in the appeal was not squarely raised at first instance, no evidence was adduced which directly dealt with this issue.

[32] The difficulty may be demonstrated this way. An email from Mr Gakis to Ms Nottle dated 12 September 2018 indicates that he had a discussion with Ms Nottle "regarding the Stewards position" and the "claim by the guys" on 27 August 2018. This is the first reference to a discussion about the dispute in the documentary material before the Deputy President. It was never clarified what the status of this discussion was and, in particular, whether it constituted a discussion relevant to Step 1 or Step 2. It may arguably have satisfied Step 1 because, under Step 1, an employee may raise a dispute with the employer's "nominated representative" rather than the Captain (Master) when the employee's vessel is not at sea, and under clause 10.5 the employee can nominate another person or organisation to represent them for the purpose of the procedure. None of this was ever explored at first instance by the parties.

[33] Permission to appeal will not be granted to allow a party to raise a contention in an appeal which was not raised at first instance with the consequence that the opposing party was denied the opportunity to call evidence to address it. Accordingly, permission to appeal in relation to the second appeal ground is refused.

[34] Maersk's third appeal ground invites a wholesale reconsideration of the conclusions reached by the Deputy President concerning each of the criteria in clause 27.5(b) of the Agreement. Those conclusions were reached on the basis of the evidence concerning the operation of two specific vessels operated by Maersk, and there is no evidence that the Decision will have implications for the crewing of any vessel operated by any other employer in Australia. The Decision itself only concerned the situation where the Vessels were operated with POB of 18 or fewer, in circumstances where the evidence disclosed that they were often operated with POB above that level in which case the Decision had no relevance. There is no suggestion that the Decision has any broader implications even within Maersk itself, since it was concerned with a specific vessel type. The subject matter of the Decision is therefore fact-specific and highly confined, and does not therefore attract the public interest or justify the grant of permission to appeal.

[35] As earlier outlined, Maersk contended that permission to appeal should be granted because provisions in the same terms as clause 27.5(b) of the Agreement appeared in other enterprise agreements, and it contended that the Deputy President adopted an erroneous construction of the clause. However we do not consider that the appeal raises any genuine issue of construction. The task that the Deputy President was required to undertake under clause 10.2(b) was to arbitrate the dispute before her and make a determination binding on the parties. It was not in contest that, in arbitrating the dispute, the Deputy President was required to make a decision consistent with clause 27.5(b). That was the relevant effect of s 739(5) of the FW Act. Clause 27.5(b) required, in an open-ended way, that the number of catering crew be determined "according to" eight specified matters. The designation of those matters as "criteria" indicates that they were required to be taken into account and were the only matters to be taken into account. Beyond that, there is nothing in the text of the clause which dictates any particular process or means by which those criteria should produce the ultimate outcome. That has effectively been left to the decision-maker.

[36] Maersk's contention that the Deputy President was required to consider the criteria as a whole including any interaction between them rises no higher than an assertion. The contention is not advanced in a way that is referable to the text of the provision, and we cannot identify anything in the text which suggests that such an approach is necessary. The course taken by Deputy President whereby she considered each criterion, made factual findings about it, stated a conclusion as to whether it weighed in favour of an additional steward or otherwise, and then reached an overall conclusion based upon a cumulative assessment of her findings concerning each criterion was one plainly available to be taken in undertaking the arbitral task under clause 10.2(b).

[37] Maersk's other constructional point concerned the Deputy President's conclusion in paragraph [57] of the Decision that workload variations associated with the number of POB is already dealt with in the sliding scale in clause 27.5(a) and was not of assistance under clause 27.5(b). However, that contention does not properly give rise to any issue of construction. There was no issue that clause 27.5(b) required the Deputy President to consider, as one of the eight criteria, "POB at any given time" (that is, POB in particular circumstances or situations). The Deputy President did that in paragraphs [87]-[89] of the Decision. Clause 27.5(b) did not require or permit POB to be taken into account other than in accordance with this criterion.

[38] It seems to us that Maersk's point is not really one of construction, but rather that that as a result of the approach taken in paragraph [57] the Deputy President failed to give consideration under clause 27.5(b)(iv) to the proposition said to have been advanced in Mr Kearney's evidence that, when at given times the Vessels only had 13 POB, they were at the lower end of the 10-18 scale and this meant that there was less servicing and cleaning work to be done. However this proposition does not justify the grant of permission to appeal, for the following reasons:

(1) It could not affect the overall outcome because the Deputy President found in any case that the criterion of "POB at any given time" in clause 27.5(b)(iv) did not support the CFMMEU's case for an additional steward. That is, acceptance of the proposition advanced by Maersk would not have improved its position in respect of the overall weighing of the eight criteria.

(2) Maersk says that the Deputy President should have found that this criterion positively favoured a decrease in crewing, or alternatively that it weighed against the addition of a steward. However, there was no basis for the Deputy President to find the former, since Maersk did not contend that there should be any reduction in crewing. As to the latter, this is merely a matter of semantics. It is clear that the Deputy President treated those criteria which did not support the addition of a steward as weighing against the grant of the CFMMEU's claim.

(3) It is not entirely clear that Mr Kearney was actually advancing the proposition referred to in Maersk's appeal submissions. In his statement of evidence, in relation to the POB criterion, he pointed out that when the Vessels were on standby, they had a crew of 13. He then said that "Less POB ... creates less work due to less cabins to maintain/meals to prepare and less servicing overall to be performed. When the POB increases, so does the cleaning and servicing requirements which is addressed through the Catering Benchmark in the Agreement" (underlining added). Likewise, he said elsewhere: "The vessel is often operating with POB 19+ and in these cases the vessel is up-manned with an extra cook and steward. This allows for additional resources to be allocated to cleanliness and tidiness whilst the POB is at the higher level" (underlining added). This evidence appears to be consistent with the position stated by the Deputy President in paragraph [57], namely that differences in servicing workload were accommodated by the benchmarks in clause 27.7(a) unless some situation beyond the ordinary was demonstrated.

(4) In any event, Mr Kearney's evidence only referred to 13 POB when the Vessels were on standby. The Deputy President found that the Vessels were also used on 24-hour operations with fewer than 19 POB, and it was on such operations that the need for an additional steward was most pressing.[20] This was the decisive consideration in the overall conclusion reached by the Deputy President to the extent that it is apparent that, but for this, she would not have found in favour of the CFMMEU's position. The evidence was that the number of POB when 24-hour operations were performed with fewer than 19 employees was not 13. Mr Kearney's evidence was that when such operations, which were anchor handling operations, were performed, the POB was in fact 15 or more[21] (and thus was not at the lower end of the 10-18 POB band). The proposition concerning the number of POB when the vessels were on standby therefore had no relevance to the basis upon which the case was decided.

[39] The other matters raised by Maersk appear to us to have little substance. We do not propose to discuss each matter raised, but the following examples will suffice:

(1) The Deputy President's preference for the evidence of Mr Knight over that of Mr Kearney where they conflicted was, we consider, reasonably open to her having regard to the fact that Mr Knight was necessarily more familiar with working operations on the Vessels than Mr Kearney. That Mr Knight may not have had first-hand experience of every aspect of the operations of the Vessels is not sufficient, we consider, to displace the Deputy President's findings concerning which evidence she preferred as to such matters. We also note that in relation to the critical issue of cleaning (discussed further below), no issue was taken by Maersk with the Deputy President's finding that there were inconsistencies between Mr Kearney's evidence and the IR Cleaning schedule for the Vessels.[22]

(2) It is clear that the Deputy President took into account that IRs, including the additional IR assigned to the Vessels, performed cleaning duties: this is specifically referred to in paragraphs [60], [72], [80]-[81], [88], [106], [114], [116] and [119]-[131] of the Decision. A contention that the Deputy President should have assigned more weight to this consideration is not in the circumstances a genuine contention of appealable error.[23] The critical finding which the Deputy President made concerning cleaning was that: "I am satisfied that the public areas on the Vessels are larger and more numerous than other comparable vessels ... I accept the CFMMEU's proposition that where those facilities are larger and more numerous they might reasonably take longer to clean."[24] There was no specific challenge to this finding in Maersk's appeal, nor to the more general finding that "... the duties of employees ... are more complex and/or onerous on the Vessels as opposed to other comparable vessels with the same POB as a consequence of the scale and complexity of the Vessels ...".[25]

(3) The Deputy President specifically considered and rejected Maersk's contention that the more advanced technology and design of the Vessels resulted in efficiencies in cleaning and maintenance.[26] Maersk's contention that the Deputy President did not take this into account is wrong, and the alternative contention that the Deputy President did not give this sufficient weight does not address the Deputy President's rejection of Maersk's case in this respect.

[40] Accordingly we do not consider that the third appeal ground supports the grant of permission to appeal.

[41] The fourth appeal ground lacks sufficient merit to justify the grant of permission to appeal. The statement in paragraph [134] that the provision of an additional steward whilst the Vessels undertake 24-hour operations might have been the basis for an industrial resolution relates specifically to the criterion in clause 27.5(b)(vii) and the statement made in paragraph [105] of the Decision. It is not indicative of any impermissible consideration having been taken into account.

[42] For the reasons stated above, permission to appeal is refused.

[43] Maersk Crewing Australia Pty Ltd (Maersk) appeals from a decision of Deputy President Binet made on 31 May 2019 pursuant to s 739 of the Fair Work Act 2009 (Act) and the dispute resolution provision in clause 10 of the Maersk Crewing Australia Pty Ltd Maritime Offshore Oil and Gas Industry (Integrated Ratings, Cooks, Caterers and Seafarers) Enterprise Agreement 2018 (Agreement). The decision determined a dispute brought to the Commission for arbitration by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) concerning the number of catering employees the company must deploy on two vessels, the Maersk Mariner and the Maersk Master. The union contended that the vessels should carry an additional crew member in the form of a steward. Maersk disagreed. The Deputy President determined the application in favour of the union.

[44] The Agreement applies to the company and the union, and covers persons employed by the company as cooks, caterers, stewards and integrated ratings. Clause 10 sets out the procedure that is to apply when a dispute arises under the Agreement. Step 4 of that procedure provides that, where the preceding steps have failed to resolve the dispute, it may be referred to the Commission for arbitration.

[45] Clause 27.5(a) of the Agreement deals with crewing arrangements for catering staff (cooks, caterers and stewards) on vessels covered by the Agreement. It prescribes a "benchmark" number of catering staff for certain ranges of persons on board a vessel. The clause states:

(a) The following benchmark manning is agreed for all Schedules, except for Schedule 4.

Nil (no caterer is provided unless there is a 10th person sent to the Vessel)

1 Chief Cook, 1 Cook, 1 Chief Steward, 1 Caterer and 2 Cook-Caterers

1 Chief Cook, 1 Cook, 1 Cook-Baker, 1 Chief Steward, and 3 Caterers

1 Chief Cook, 2 Cooks, 1 Cook-Baker, 1 Chief Steward, and 3 Caterers

1 Chief Cook, 1 Cook-Baker, 1 Cook, 1 Chief Steward, and 4 Caterers

1 Chief Cook, 2 Cooks, 1 Cook-Baker, 1 Chief Steward, and 5 Caterers

Apply one caterer per 12.5 POB, where POB exceed 111."

[46] The range of persons on board that is relevant to the present matter is the second one in the above table: for a vessel with 10 to 18 persons on board, the "catering manning" benchmark is "1 cook".

[47] Clause 27.5(b) then states:

"Should there be disagreement, the numbers will be determined according to the criteria below:

(i) Size and configuration/layout of the accommodation and deck levels;

[48] Although it does not specifically say so, clause 27.5(b) clearly contemplates that the actual number of catering staff that will be deployed on a vessel may differ from the benchmark number, and that the parties may agree on what the actual number will be. The clause then sets out a method for resolving a disagreement. It is not surprising that there is a mechanism for determining the actual number of catering staff, given that the benchmark numbers apply to ranges of persons on board. Of the ten listed ranges, the smallest range is nine and the largest is sixteen. In a particular case, having regard to the considerations listed in clause 27.5(b), the actual number of catering staff might appropriately be greater, or fewer, than the benchmark.

[49] If we consider the second range listed in the table, we are to contemplate situations where a vessel might have on board anywhere from 10 to 18 persons, and within this range one can imagine that the catering requirements might vary depending on the circumstances. The benchmark number of catering staff for this range is one cook, but this will not necessarily be the actual number of catering staff. If the parties disagree about the actual number, the eight "criteria" in clause 27.5(b) are to be applied, and if a dispute arises and remains unresolved, it may be referred to the Commission for arbitration, in the manner provided for in clause 10.

[50] On 7 November 2018, the CFMMEU lodged an application under s 739 of the Act and the disputes procedure in clause 10 of the Agreement in relation to the catering manning on the two vessels mentioned above. Its application stated that, "given the nature of the vessels above, and considering the factors set out at clause 27.5(b) of the Agreement, the Applicant contends that the vessel should be manned with an extra steward". The application noted that the company rejected this claim and that the parties were therefore in dispute.

[51] On 23 November 2018, Maersk lodged a written response to the union's application. It stated that a steward had been trialled on the vessels when they were new to Australia in order to assist the crew for the first two weeks of each "swing" but that the steward was removed from the vessels "as part of an agreement reached with the Applicant to add a fifth Integrated Rating position earlier this year"[27] ("the earlier dispute").

[52] The Deputy President heard the union's application over two days in March 2019. The parties did not submit an agreed question for determination however the CFMMEU's written submissions stated that the "matter to be determined" was as follows: "taking into account those matters outlined at clause 27.5(b) of the (Agreement), should the vessels Maersk Mariner and Maersk Master be crewed with an additional steward over and above the manning outlined in clause 27.5(a) - Catering Benchmark Manning?"[28] It is clear from the company's written submissions that it adopted the union's framing of the dispute and its identification of the "matter" that needed to be determined by the Commission.[29]

[53] In her decision, the Deputy President first addressed two "objections" raised by the company to the application. First, she concluded that the dispute before her was separate from the earlier dispute and rejected the company's contention that the union's application was vexatious and should be dismissed. Secondly, she rejected the company's contention that no employee had raised the dispute with the Captains of the vessels, and determined that the procedure in clause 10 of the Agreement had been complied with. The Deputy President then considered the application of clause 27.5(b) to the circumstances of the union's application. She concluded that "the weight of the criteria to be considered when determining the catering benchmark manning for the Vessels when the parties do not agree weighs in favour of the addition of a Steward to the crew of each Vessel when the POB is less than 18".

[54] The company contends that it has a right of appeal from the Deputy President's decision pursuant to clause 10 of the Agreement, but that if permission to appeal is required, it should be granted on the basis that the decision is attended by sufficient doubt to warrant its reconsideration and is affected by jurisdictional error, and because it manifests an injustice.

[55] Clause 10.4 of the Agreement provides that a decision of a single member of the Commission made under the dispute resolution procedure "can be appealed to a Full Bench of the FWC". Maersk submits that these words establish an independent right of appeal, such that the requirement for permission to appeal in s 604 is not applicable. I reject this contention. Clause 10.4 does not speak of a right of appeal. It contrasts with the clause that was considered by the Full Bench in AMWU v Silcar Pty Ltd,[30] which stated that a single member's decision was subject to a party "exercising a right of appeal against the decision to a Full Bench".[31] Clause 10.4 says nothing of this kind. It simply recognises the availability of an appeal. In doing so, it confirms that an appeal is not precluded by the terms of the Agreement.

[56] Maersk's appeal therefore requires the Commission's permission under s 604. The relevant principles are well-known, and I do not restate them. For the reasons given further below, I consider that permission to appeal should be granted.

[57] Maersk advances four grounds of appeal. Briefly stated, the first and second grounds contended that the Deputy President erred in rejecting the company's two objections to the application referred to above. The third ground contended that the Deputy President erred in the course of reaching her substantive conclusion by misconstruing and misapplying clause 27.5 of the Agreement in various respects. The fourth ground contended that the Deputy President took into account an irrelevant consideration, namely the possibility of an "industrial resolution," which is not one of the matters prescribed by clause 27.5(b).

[58] By its first ground of appeal Maersk contends that the Deputy President erred in rejecting its contention that the matter before her fell within the settlement of the earlier dispute. It submits that the Deputy President erred in failing to take into account, or give sufficient weight to, the uncontradicted evidence of Mr David Kearney that the settlement resolved the question of additional manning on the two vessels on the basis that an additional integrated rating would be engaged in return for the removal of the steward.

[59] Before the Deputy President, the company had submitted that the union's application should be dismissed under s 587 on the ground that it was vexatious. Such a submission faces a high bar, as it contends, in effect, that the proceeding was brought for an improper purpose. However, I do not consider that the company's first objection was confined to a submission that the union's application should be dismissed on this basis. In its written submissions before the Deputy President, the company contended that the union's present application was a continuation of a previous dispute and that "in summary, the Respondent seeks the protection of the FWC against a breach by the Applicant of a settlement reached less than four months prior to this Application being lodged."[32] The company was contending, in substance, that the presently "disputed" matter had been the subject of a recent settlement and that it could therefore not properly be brought before the Commission as a dispute. This contention raised a question about the Commission's authority under clause 10 of the Agreement to arbitrate the matter.

[60] The earlier dispute was the subject of an application lodged in the Commission by the CFMMEU on 15 June 2018 under s 739 and clause 10 of the Agreement. The union contended that the Maersk Master and the Maersk Mariner were vessels whose main propulsion engines generated "18,000 BHP" or above and were consequently Schedule 2 vessels, which would have required the company to deploy an additional integrated rating to the crew. The company's position was that the vessels were covered by Schedule 1 of the Agreement and that no additional crew were required. The parties settled the matter and the union discontinued the application.

[61] When the second application came before the Deputy President some months later, the company contended that the earlier dispute had been settled on the basis that it would deploy an extra integrated rating on the two vessels, but that in exchange, the existing steward position would be removed. The company submitted that this agreement related not just to the minimum crewing rules for vessels of a particular engine size pursuant to the schedules in the Agreement, but to the crewing of the vessels generally.

[62] The Deputy President's analysis of the company's contentions on this matter was as follows:

"[28] The dispute the subject of this Application concerns the operation of clause 27.5(b) of the Agreement and makes a claim for additional catering manning based on the matters set out in clause 27.5(b) of the Agreement. The dispute the subject of application C2018/3287 related to the Vessels but concerned whether size of the engines on board the vessels impacted on the minimum number of IRs required by Schedule 1 of the Agreement to operate the Vessels.

[29] It appears from the correspondence between the parties that the parties were of the view that the dispute the subject of this Application and the dispute the subject of application C2018/3287 was a separate and different dispute.

[30] Ms Nottle says that she indicated in a telephone conversation with Mr Gakis on 27 August 2019 that she believed that the two applications related to the same dispute and that the dispute had already been settled. She produced no evidence to corroborate the assertion, for example by way of contemporaneous file note. Had that been her genuine belief at the time it seems odd that despite having plenty of opportunity to do so she did not assert it in writing at any point in the series of emails exchanged between the parties.

[31] Under cross examination Mr Kearney conceded that the request for an additional steward pursuant to the catering benchmark was a different dispute to the one involving a claim for an extra IR due to the engine size of the vessels.

[32] I am of the view that the Dispute the subject of this Application is a separate and different dispute to the one the parties resolved albeit that the resolution of one (removal of the supernumerary part time Steward) may have triggered the other. In the circumstances I am not satisfied that the Application is vexatious or that it should be dismissed."

[63] The Deputy President was correct in concluding, at [28] and [32], that the subjects of the two applications and the two disputes were different. There was no debate about this. The earlier application related to whether the schedules in the Agreement required an additional integrated rating to be deployed on the two vessels because of their engine size, whereas the second dispute concerned the appropriate actual number of catering crew under clause 27.5(b). However, this does not answer the company's contention that the settlement of the first matter covered what was claimed in the second, as it had reached an agreement with the union about crewing issues on the two vessels which involved the company deploying an extra integrated rating in exchange for the removal of a steward.

[64] If the union's claim for an additional catering resource was captured by the settlement of the earlier dispute, there would be real doubt about whether there was before the Commission any actual "dispute" for the purpose of the dispute resolution procedure in the Agreement. Clause 10 states that "when an industrial dispute arises ... this clause sets out the procedure to resolve the dispute". Each of steps 1, 2 and 3 allows progression of the dispute to the next stage "if the matter remains unresolved". Step 4 states that if the preceding steps have "failed to resolve the matter", it may be referred to the Commission, and if the Commission cannot resolve the matter by mediation and other non-determinative means, it may arbitrate the dispute. The disputes procedure is concerned with unresolved disputes. If the dispute before the Commission had, as a matter of fact, already been "resolved" because it was covered by an earlier settlement, I do not see how it could properly be taken to the Commission under clause 10. There would be no unresolved matter or dispute for the purposes of the clause.

[65] The Deputy President was alive to a connection between the two disputes, noting at [32] that the subject of the application before her was a separate and different dispute to the one the parties resolved in July, "albeit that the resolution of one (removal of the supernumerary part time Steward) may have triggered the other." This "trigger" goes to the heart of the company's case on this point. It contended that the union, having in July secured an extra integrated rating in exchange for the removal of the steward, then sought in August to recoup through a different clause what it had agreed to trade away. The central question to be answered here was whether the settlement of the earlier dispute related to claims for additional crewing on the vessels generally, or whether it was confined to claims for additional crewing associated with the vessels' engine size only.

[66] The Deputy President did not make any determination about whether, as the company contended, the dispute before her was caught by the scope of the settlement of the earlier dispute. This question needed to be determined in order to establish jurisdiction.

[67] The company's appeal on this basis might be inutile if its contention about the scope of the settlement were plainly without merit. But this is not the case. On 19 July 2018 Mr Kearney wrote to Mr Cain, the WA Assistance Branch Secretary of the union, offering to "start afresh", or, as the Deputy President said at [18], to "reset the relationship". Mr Kearney said that he confirmed the following commitments.

1. Maersk will discontinue Fair Work Commission dispute application RE2018/763 in the next few days and implement the following manning arrangements with no further retrospective claims to arise.

   • (a) During any period in which the vessel is contracted to perform work in Australia under the current EA, Maersk Supply Service will implement the following minimum manning levels on our M-Class Vessels:

     1. Five Integrated Ratings and one Cook (one of the Integrated Ratings may be a Junior Integrated Ratings or Provisional Integrated Ratings).

     2. This being effected today on Maersk Master (Full Crew Change) and planned for Maersk Mariner Tuesday 24th July (Full Crew Change).

2. The CFMMEU will discontinue the Fair Work Commission dispute applications C2018/3287[33] and 2018/3836 in the next few days and take no further action (e.g. applications / prosecutions) on those issues or the issues referred to in the CFMMEU's correspondence to Maersk dated 4 July 2018 regarding right of entry during the week of 2 July 2018.'

[68] Mr Kearney's letter makes no reference to the removal of the steward. But nor does it mention a steward being part of the agreed manning levels. The letter states that during any period in which the vessel is contracted to perform work in Australia under the current EA, minimum manning will be five integrated ratings and one cook. It does not confine these arrangements to an analysis of the minimum manning requirements associated with engine size under the schedules. It does not expressly or by implication preclude minimum catering crewing from its scope. On the face of the exchange between Mr Kearney and Mr Cain, there was an agreement about minimum crewing on these particular vessels which included a fifth integrated rating and no steward. Further, the second condition referred to in Mr Kearney's letter states not only that the union will discontinue the application lodged in connection with the earlier dispute, but that it will take "no further action on those issues."

[69] Mr Kearney's evidence before the Deputy President was that the parties had agreed to add a full-time integrated rating to the crew of the vessels in return for removal of a temporary part-time steward, and that this was confirmed in the letter cited above. He said that he advised the union that in order for the company to add a full time additional integrated rating, it would need to remove the steward as a means of funding part of the associated cost.[34] No witness evidence was led from the union, including from Mr Cain, with whom Mr Kearney spoke and corresponded about these matters.

[70] As to the "concession" of Mr Kearney referred to by the Deputy President at the end of [31] of her decision, the passage of transcript cited in that paragraph shows that Mr Kearney acknowledged that there had been two separate applications made by the union and that they related to different subject matters. But his answer did not address, nor did he make any concession about, the scope of the settlement of the earlier dispute.

[71] As to the uncontradicted evidence of Ms Nottle about her discussion with Mr Gakis, which the Deputy President appears to have doubted because of the absence of a corroborative file note or other documentary evidence, this went to the company's reaction to the union's second dispute, not the scope of the settlement of the first dispute.

[72] In my opinion, the Deputy President erred by not determining the company's fundamental contention that the dispute before the Commission fell within the settlement of the earlier dispute. The contention was not plainly without merit and the error was therefore not inconsequential. The error went to jurisdiction because clause 10 of the Agreement permits the Commission to arbitrate only unresolved disputes. I would uphold the first ground of appeal.

[73] Among the various subsidiary arguments of the company's third ground of appeal was a contention that the Deputy President erred in her construction of clause 27.5(b)(iv). It will be recalled that one of the eight "criteria" by reference to which the actual number of catering employees to be deployed on a vessel in the event of a disagreement is "POB at any given time".

[74] The company contended that the Deputy President misinterpreted clause 27.5(b)(iv) by wrongly reading the reference to "POB" as the relevant range of persons on board as set out in the table in clause 27.5(a). It says that the correct interpretation of "POB" in clause 27.5(b)(iv) is the actual number of persons on board, not the relevant range. The company further contends that the Deputy President erred in concluding, at [57], [63], [77] and [85], that the persons on board did not need to be taken into account because they are already dealt with under clause 27.5(a).

[75] The company's interpretation of clause 27.5(b)(iv) of the Agreement is plainly correct. The clause is concerned with the actual number of persons on board at a given time, not the range of persons referred to in the table in clause 27.5(a). Clause 3.1 of the Agreement defines "POB" as "persons on board". The heading in the first column of the table in clause 27.5(a) is "POB", and underneath it there appear various numbers; these are the ranges of persons on board. There is a clear distinction in the Agreement between the persons on board and the ranges of persons on board.

[76] It makes sense that the actual number of persons on board a vessel (not the range of persons) would be a relevant consideration in resolving a disagreement about what should be the actual number of catering staff on a vessel. The benchmark number applies to the range, but what happens in a particular case depends on the circumstances, including the number of persons on board at any given time, which is a logical variable.

[77] In her decision, the Deputy President addressed each of the eight matters listed in clause 27.5(b). In relation to clause 27.5(b)(iv), she stated:

[87] The CFMMEU submit that, other than when conducting anchor handling, the Vessels run with minimal crew. According to the CFMMEU this perversely increases the cleaning workload. Firstly because there are more unoccupied cabins which require cleaning and secondly because there are no Stewards and only one Cook on board the general cleaning duties are spread among fewer individuals.

[88] That there might be more work to do when there are fewer POB if the IRs are required to clean empty cabins is equally applicable to all Schedule One vessels with 18 or less POB. The CFMMEU have not identified anything peculiar to the Vessels with respect to their POB which would justify a different catering manning level.

[89] I am not satisfied that POB on the Vessels weighs in favour of the addition of an extra Steward to the crew of the Vessels when the POB is 18 or less."

[78] In my assessment, it is clear from this passage that the Deputy President has understood "POB" in clause 27.5(b)(iv) as meaning the range of persons on board a vessel. There is no consideration here of the actual number of persons on board. And at [88], the Deputy President says that the union's hypothesis is applicable to all "Schedule One vessels with 18 POB or less", that is, all vessels with this range of persons on board.

[79] Earlier in her decision, the Deputy President considered the company's evidence that had sought to contradict the union's contention that fewer people on board resulted in more work to do. The Deputy President stated:

"[57] A portion of Mr Kearney's evidence dealt with the reduced catering, cleaning and upkeep requirements when a vessel has a lower POB count as opposed to the requirements when a vessel has a POB which is higher. The workload variation associated with a higher or lower POB is dealt with by the sliding scale of catering manning in the table in clause 27.5(a) of the Agreement. It is not of assistance when determining the catering manning of vessels with the same POB which is the task I'm required to undertake in this Application."

[80] Here too the Deputy President considered the reference in clause 27.5(b)(iv) to "POB" to concern the relevant range (10-18) of persons on board for the purpose of the benchmark, rather than the actual number of persons on board. She also considered this matter to have already been taken into account in clause 27.5(a).

[81] In my view it is clear that the Deputy President misconstrued clause 27.5(b)(iv) by reading it as a reference to the range of persons on board, rather than the actual number of persons on board at a given time. The consideration in clause 27.5(b)(iv) was therefore not taken into account. The effect of the constructional error was amplified through its application to three of the other seven considerations. It affected the Deputy President's consideration of clause 27.5(b)(i) ("size and configuration / layout of the accommodation and deck levels"):

"[63] Mr Kearney also says that when the POB is less than 19 not all areas of the Vessels are in daily use and therefore the Vessels require less upkeep. That there is less cooking and cleaning the lower the POB is taken into account in the sliding scale in the manning schedule and is not of assistance in determining why vessels with the same POB might have different catering manning requirements."

[82] It affected the consideration of clause 27.5(b)(ii) ("public areas"):

"[77] I am satisfied that the public areas on the Vessels are larger and more numerous than other comparable vessels. I am satisfied that there is less cooking and cleaning the lower the POB is taken into account in the sliding scale in the manning schedule. It is not of assistance in determining why vessels with the same POB might have different catering manning requirements. To the extent that such facilities are used on a vessel with a POB of 18 or less then I accept the CFMMEU proposition that where those facilities are larger and more numerous they might reasonably take longer to clean."

[83] And it affected the consideration of clause 27.5(b)(iii) ("number of cabins / berths to service"):

"[85] The evidence and submissions of both parties in relation to this criteria relates to the differences in cleaning workload as a result of a difference in the number of POB. This is taken into account in the sliding scale in the manning schedule. It is not of assistance in determining why vessels with the same POB might have different catering manning requirements. The CFMMEU have not identified anything peculiar to the Vessels with respect to the number of cabins or berths to service that would justify a different catering manning level."

[84] The actual number of persons on board was an important part of the company's case. The evidence before the Commission was that the vessels predominantly worked with thirteen persons on board, a number at the lower end of the relevant range. In his witness statement, Mr Kearney addressed each of the eight "criteria" in clause 27.5(b). In relation to sub-clause (iv), he stated that "POB on standby duties is fixed at thirteen crew" and that there were "no regular additional passengers or third parties on board". Concerning sub-clause (ii) ("public areas"), he said that there are "only thirteen crew on board", and in respect of sub-clause (v) ("laundry service and equipment") he also mentions a crew of thirteen. Then in his oral evidence before the Deputy President Mr Kearney was asked to elaborate on his understanding of the vessels' activities and operations, to which he replied that "where we have got a thirteen man crew there's generally, as you've seen already ... the vessel is mainly contracted for standby, so rig support roles. That is our prime business here in the Asia Pacific."[35] He was asked about an assessment of the workload associated with a particular stocktaking system, to which he said that he had asked Copenhagen (home of the parent company) to assist in establishing a baseline for "what is expected for a crew of thirteen."[36] Other references to the crew size of thirteen appear elsewhere in the evidence of Mr Kearney,[37] and in exchanges between the Deputy President and the company's representative[38] and the union's representative.[39]

[85] The Deputy President ultimately concluded that the consideration in clause 27.5(b)(iv) did not weigh in favour of the union's claim for the addition of an extra steward. However, this does not mean that the constructional error was inconsequential. Had the Deputy President interpreted the sub-clause correctly, her assessment of it could have weighed against the addition of a steward, rather than being only a neutral consideration. It could also have affected her consideration of the other matters in clause 27.5(b), and her overall assessment of whether an additional steward was warranted in the circumstances.

[86] The Deputy President concluded at [134] that the need for an extra steward was "most pressing" when the vessels undertake 24-hour operations (evidently the need was still "pressing" at other times). Mr Kearney's evidence was that during 24-hour operations the actual number of persons on board is 15 or more. Even if it is accepted that the need for an extra steward on 24-hour operations was the decisive consideration in the Deputy President's analysis, this does not negate or minimise the significance of her misinterpretation of clause 27.5(b)(iv). Had the Deputy President considered the actual number of persons on board at most operational times (thirteen), this might have outweighed the perceived need for a steward during 24-hours operations. Further, a consideration of the actual number of persons on board during 24-hour operations (sometimes 15, but sometimes more than 18 such that a higher benchmark applies)[40] might also have affected her analysis and the outcome.

[87] The dispute that the union brought to the Commission under clause 10 of the Agreement, and the question that it raised for determination, was whether, taking into account the matters in clause 27.5(b), the two vessels should be crewed with an additional steward over and above the manning benchmark in clause 27.5(a). The Deputy President was required to take into account the consideration in clause 27.5(b)(iv), properly construed. She did not do so. The decision is therefore inconsistent with clauses 10 and 27.5(b) of the Agreement, and contrary to s 739(5) of the Act, which provides that the Commission must not make a decision that is inconsistent with a fair work instrument that applies to the parties. The decision is therefore affected by an error of jurisdiction requiring correction on appeal.

[88] I do not propose to address the remaining appeal grounds. I concur with the majority decision that they should be dismissed.

[89] I would grant permission to appeal on the basis that the decision is affected by errors of jurisdiction, which attracts the public interest. I would uphold the appeal on the two bases identified above, quash the decision and remit the CFMMEU's application to the Deputy President for redetermination.

D Parker on behalf of Maersk Crewing Australia Pty Ltd

L Edmonds on behalf of the Construction, Forestry, Maritime, Mining and Energy Union

[1] [2019] FWC 1745

[11] DP World Brisbane Pty Ltd v Maritime Union of Australia [2013] FWCFB 8557, 237 IR 180 at [46], quoted with approval in AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123, 235 FCR 305 at [49]

[12] [2016] FWCFB 8120

[14] [2017] FWCFB 3317

[16] [2011] FWCFB 3005

[18] See DP World Brisbane Pty Ltd v Maritime Union of Australia [2013] FWCFB 8557, 237 IR 180 at [48]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123, 235 FCR 305 at [51]

[19] See for example the analysis in DP World (Fremantle) Ltd v CFMMEU [2019] FWCFB 3965 at [24]- [29]

[20] [2019] FWC 1745 at [103]- [105], [134]

[21] Transcript 15 March 2019 PNs923-928

[22] [2019] FWC 1745 at [131]

[23] Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159, 258 FCR 312 at [448], [485]; Director of Consumer Affairs Victoria v Alpha Flight Services Pty Ltd [2015] FCAFC 118 at [25]- [32]; Re Restaurant and Catering Association of Victoria [2014] FWCFB 1996, 243 IR 132 at [57]- [58]

[24] [2019] FWC 1745 at [77]

[27] Form F1 dated 23 November 2018, section 2.2, paragraph 5; AB155

[28] Applicant's submissions, paragraph 10, AB309

[29] Respondent's submissions, paragraphs 2 and 3, Appeal Book p.376

[30] [2011] FWAFB 2555, 208 IR 33

[33] Matter C2018/3287 in point 2 was the application filed by the union in respect of the earlier dispute.

[34] Witness statement of David Kearney, paragraphs 19 and 20, Appeal Book p.327-328

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