Fair Work Act 2009

s.604 - Appeal of decisions

MMA Offshore Vessel Operations Pty Ltd t/as MMA Offshore

Construction, Forestry and Maritime Employees Union

Appeal against decision [2025] FWC 1585 of Deputy President O'Keefe at Sydney on 9 June 2025 at Perth in Matter Number C2025/1120- Dispute concerning long service leave entitlements under the MMA Offshore Vessel Operations Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023 - Application to vacate directions and hearing with respect to appeal pending determination of Federal Court proceedings - Whether in the interests of justice to adjourn appeal proceedings - Application dismissed.

• [1] MMA Offshore Vessel Operations Pty Ltd has filed a notice of appeal with respect to a decision of a Deputy President of the Commission. The decision arose from a dispute notified to the Commission by the Construction, Forestry and Maritime Employees Union on 14 February 2025 under clause 10 of the MMA Offshore Vessel Operations Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023 (the MMA Agreement). The dispute concerns the method for accruing long service leave under clause 39.2 of the MMA Agreement. The application which notified the dispute to the Commission referred to the long service leave entitlements of a particular employee, Geoffrey Ammon.

• [2] The dispute was subject of a hearing conducted by the Deputy President on 26 May 2025, and the Deputy President handed down his decision on 9 June 2025.[1] The Deputy President determined that the proper interpretation of clause 39.2 of the Agreement is that an employee who reaches 10 years of continuous service with MMA at any time after the approval of the MMA Agreement is entitled to thirteen weeks of long service leave paid at their aggregate salary. That conclusion involved the rejection of the interpretation of clause 39.2 advanced by MMA which contended that this rate of accrual only applied to service after the commencement of the MMA Agreement.

• [3] On 30 June 2025, MMA filed a notice of appeal. On 4 July 2025, the appeal was listed for hearing on Tuesday, 9 September 2025 and directions were made for submissions to be filed in advance of the appeal hearing. MMA was directed to file an outline of submissions addressing the question of permission to appeal and the merits of the appeal by 5 August 2025. It did not do so. It did communicate to my chambers on that day that proceedings had been commenced in the Federal Court seeking declaratory relief on the question of long service leave which is material to the appeal and that counsel were conferring in relation to MMA's intention to seek a vacation of the current directions and adjournment of the appeal hearing. Later, on 11 August 2025, MMA filed an application seeking an order that the directions and appeal hearing be adjourned pending determination of the application before the Federal Court of Australia in proceeding number WAD270/2025.

• [4] The proceeding in matter number WAD270/2025 were commenced on 5 August 2025 and involve an application for declarations with respect to certain provisions of four enterprise agreements, including clause 39.2 of the MMA Agreement. MMA asserts that the identified provisions of three other enterprise agreements are in substantially identical terms. The applicants in the Federal Court proceedings are the Offshore Employers Association Ltd and Cyan Vessel Operations Pty Ltd. MMA is now known as Cyan Vessel Operations Pty Ltd. The Offshore Employers Association is described as an unregistered association of employers that represents the industrial interests of employers in the maritime offshore oil and gas industry. The only named respondent to the application is the CFMEU.

• [5] MMA seeks orders vacating the directions and hearing with respect to its own appeal on the basis that the same question which arises in the appeal will be considered in the Federal Court proceedings. In short, MMA submits that the dispute as to the interpretation of clause 39.2 of the MMA Agreement will remain irrespective of the outcome of the appeal in respect of other employees of MMA to whom the MMA Agreement applies, and in respect of other enterprise agreements with equivalent provisions. It says that the declarations sought in the Federal Court proceeding, if made, will conclusively determine the proper construction of the clause. It says that, should the appeal not be adjourned, there arises a real risk of competing proceedings dealing with the same subject-matter and consequently the real risk of conflicting decisions between the Full Bench and the Federal Court.

• [6] The CFMEU opposes the application to vacate the directions and the appeal hearing. It says that the appeal will resolve the question of the proper interpretation of clause 39.2 of the MMA Agreement so far as the CFMEU and MMA are concerned and render the Federal Court proceedings unnecessary at least in that respect. The CFMEU indicated that, if the appeal was decided against it, it would likely accept that outcome with respect to other agreements containing equivalent provisions. I did not take that to constitute a formal undertaking but rather a submission that there is a reasonable prospect that an appeal decision would resolve the dispute entirely at least in a practical sense.

• [7] The Commission has a broad discretion under s 589(1) of the Fair Work Act 2009 (Cth) (the Act) to make decisions as to how, when and where a matter before it is to be dealt with. The discretion is sufficiently broad to permit the Commission to stand a matter over pending the outcome of proceedings in another jurisdiction.[2]

• [8] The approach generally adopted by the courts to an application such as the present is to consider whether it is in the interests of justice to stay a particular proceeding having regard to the whole of the circumstances of the case. An example of the type of considerations that may be relevant to that assessment is the list provided by Lockhart J in Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287 in the following passage:[3]

In my opinion relevant considerations to be taken into account in the present case include the following:

• Which proceeding was commenced first.
• Whether the termination of one proceeding is likely to have a material effect on the other.
• The public interest.
• The undesirability of two courts competing to see which of them determines common facts first.
• Consideration of circumstances relating to witnesses.
• Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
• The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
• How far advanced the proceedings are in each court.
• The law should strive against permitting multiplicity of proceedings in relation to similar issues.
• Generally balancing the advantages and disadvantages to each party.

• [9] Those considerations do not constitute a prescriptive list or code but have been considered relevant to an assessment of whether proceedings in this Commission should be stayed pending determination of proceedings in the Federal Court and vice versa.[4]

• [10] In relation to the approach to be adopted, MMA referred to the decision of Bromberg J in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033. In that matter, a dispute was notified to the Commission by the AMIEU in relation to the alleged underpayment of employees. Before that dispute came before the Commission for hearing, Teys commenced proceedings in the Federal Court which sought determination of the same substantive question. Teys sought an interlocutory order restraining the AMIEU from pursuing the dispute in the Commission.

• [11] Bromberg J acknowledged that the interlocutory application raised "difficult issues in which there are competing considerations" but concluded that, on balance, it was in the interests of justice in the circumstances of that matter for the substantive question to be first determined by the Federal Court. The considerations taken into account in reaching that conclusion were, in summary: that the court's specialist function is the final determination of legal rights; the Commission is an inferior tribunal and will be assisted by the reasons of the court; the matter involved complex issues of law which deserved the attention of a superior court; the issues raised were of general importance including that they may impact on other similar enterprise agreements; if the substantive question continues to determination in private arbitration and at the same time in the court, there is the potential for inconsistent answers to be given; and the potential for delay in the Commission proceedings.[5]

• [12] MMA submits that at least the first, second, fourth and fifth of the considerations referred to by Bromberg J favour adjourning the appeal proceedings in this matter pending the determination of the Federal Court proceedings. MMA places particular emphasis on the potential for inconsistent decisions in the Commission proceedings and in the Federal Court proceedings in relation to the proper interpretation of clause 39.2 of the MMA Agreement and provisions containing similar or identical wording in other enterprise agreements. MMA says that such an outcome would be inconvenient and incongruent, particularly if it is bound by the outcome of the arbitration proceedings only with respect to Mr Ammon.

• [13] Like in Teys, the application to adjourn the appeal proceedings in the present matter raises difficult issues in which competing considerations point in different directions. The assessment of whether the interests of justice favour adjourning the appeal proceedings pending the outcome of the Federal Court proceedings require consideration of the whole of the circumstances and the proper course is, admittedly, finely balanced. On balance, however, I do not consider it is appropriate to adjourn the appeal proceedings. A number of considerations appear to me to be significant.

• [14] First, the appeal proceedings constitute a continuation of the Commission dealing with the dispute notified by the CFMEU in February.[6] In making the MMA Agreement, MMA committed itself to resolving disputes through a process in which the dispute may be arbitrated by the Commission and it will be bound by the outcome.[7] MMA did not dispute the jurisdiction of the Commission to determine the dispute notified by the CFMEU or contest that it was an appropriate forum to do so. It participated in the proceedings before the Deputy President and has sought to utilise its entitlement to seek permission to appeal from the decision. It is not, in my opinion, in the interests of justice to countenance a party seeking to move the dispute to a different forum midstream because it has received a ruling with which it disagrees. That course is inconsistent with the purpose of facilitating the resolution of disputes by the Commission under enterprise agreements by way of private arbitration as an economical alternative to judicial proceedings.[8] It might constitute an abuse of process,[9] although it is unnecessary to express a view in relation to that question.

• [15] Second, unlike the situation in Teys, the Commission proceedings and the Federal Court proceedings are not at the same stage. The Deputy President has already determined the disputed question of interpretation. MMA's appeal is listed on 9 September 2025. The Federal Court proceedings were only commenced on 5 August 2025, nearly two months after the Deputy President's decision and one month before the appeal is listed (and after the time for filing of MMA's appeal submissions had passed). It is not possible to know exactly how long the Federal Court proceedings will take to determine, but it is likely the adjournment sought by MMA will delay the appeal proceedings at least by many months. That is leaving aside the possibility of an appeal from any first instance decision in the Federal Court.

• [16] Third, although the appeal involves a question concerning the interpretation of an enterprise agreement, MMA accepts that the question is not overly complex and does not dispute that the matter is able to be appropriately determined by the Commission. There is not any reason to necessarily prefer the resolution of the dispute in the Federal Court rather than in the Commission, particularly where the Commission proceedings have reached the stage they have. The Commission is a specialist tribunal and its expertise at least extends to the resolution of issues such as those raised in the present proceedings.[10] Indeed, as has been observed, MMA has agreed to an enterprise agreement which requires disputes of this nature to be referred to the Commission for binding determination.

• [17] Fourth, there is, in my opinion, a reasonable prospect that the appeal proceedings will resolve the disputed question of construction at least in relation to the MMA Agreement. Having initiated the dispute, the CFMEU will be bound by any determination of the Full Bench. If MMA is successful in the appeal, any practical dispute under the MMA Agreement is likely to be at an end. MMA claims it will only be bound by an adverse conclusion in relation to Mr Ammon. I have some doubt that is correct. Although the dispute notification referred to the circumstances of Mr Ammon, the Deputy President was asked to answer a general question of interpretation. MMA itself requested the Deputy President to make a determination in relation to the interpretation of clause 39.2 of the Agreement in general terms and not limited to the circumstances of Mr Ammon.[11] Arguably, MMA is bound by that interpretation generally and cannot contend for a different meaning.[12] It is sufficient, for present purposes, to observe that there is at least a reasonable possibility that a decision of the Full Bench will finally resolve the dispute in relation to the MMA Agreement and the Federal Court proceedings will be unnecessary to that extent.

• [18] Fifth, although the Federal Court proceedings seek relief with respect to three other enterprise agreements in addition to the MMA Agreement, there is no evidence before the Commission that there is any live dispute in relation to the other agreements. The employers covered by the other agreements are not themselves party to the Federal Court proceedings, although the application indicates that those companies have authorised the Offshore Employers Association Ltd to bring the application. Attached to the adjournment application is an affidavit of a solicitor for MMA, Daniel White, made in support of the originating application in the Federal Court proceedings. The affidavit asserts there is a broader controversy over the term and annexes correspondence between MMA's solicitors and the CFMEU. The correspondence does not refer to any dispute other than that other employees of MMA may be affected by the Deputy President's decision. There is no evidence before the Commission of any actual dispute involving any other employer.

• [19] Sixth, the factor which most favours adjourning the appeal is the possibility of inconsistent decisions in the Commission and the Federal Court. However, in the circumstances of this matter, I consider that the prospect of inconsistent decisions in relation to clause 39.2 of the MMA Agreement is an unlikely eventuality if the appeal proceedings continue because the appeal is likely to resolve the dispute. In relation to the other enterprise agreements containing provisions with similar wording, it is possible that the Federal Court will reach a different conclusion to the Commission. However, such an outcome is always possible in light of MMA agreeing to the arbitration of a dispute arising under the MMA Agreement by the Commission. A different view might be taken in arbitral or judicial proceedings concerning different enterprise agreements containing an equivalent provision. There is nothing inherently incongruous in that possibility.

• [20] For these reasons, I am not persuaded that it is in the interests of justice to vacate the directions and adjourn hearing with respect to MMA's appeal. The application filed by MMA is dismissed. Revised directions will be issued for the filing of submissions in advance of the appeal hearing.

A Pollock, counsel, instructed by Mills Oakley for the appellant.

[1] Construction, Forestry and Maritime Employees Union v MMA Offshore Vessel Operations Pty Ltd t/as MMA Offshore [2025] FWC 1585.

[2] See, for example, Bowker v DP World Melbourne Ltd (t/as DP World) [2014] FWC 732 at [4] and Re Esso Australia [2018] FWC 6244 at [10].

[3] Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited (1992) 34 FCR 287 at 291 (Lockhart J).

[4] Bowker v DP World Melbourne Ltd (t/as DP World) [2014] FWC 732 at [5]; Australian Workers' Union v John Holland Pty Ltd [2023] FCA 892 at [27] (Jackman J); CPB Contractors Pty Ltd v Construction, Forestry and Maritime Employees Union (No 2) [2024] FCA 460 at [27] (Rangiah J); Association of Professional Engineers, Scientists and Managers Australia (t/as Collieries' Staff and Officials Association) v Wollongong Resources Pty Ltd [2024] FWC 280 at [24].

[5] Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033 at [31]- [38] (Bromberg J). See also Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2020] FCA 682; (2020) 295 IR 373 at [84]- [91] (Katzmann J).

[6] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; (20150 235 FCR 305 at [57]-[58] (Dowsett, Tracey and Katzmann JJ).

[8] Linfox Australia Pty Ltd v Transport Workers Union of Australia [2013] FCA 659; (2013) 213 FCR 479 at [33] and [37] (Rares J).

[9] SOS Nursing and Home Care Service Pty Ltd v Smith [2013] FCA 295 at [49]- [52] (Buchanan J) and the authorities referred to therein.

[10] National Tertiary Education Union v Monash University [2022] FCA 1368 at [20] (Snaden J).

[11] Respondent's Outline of Submissions dated 8 May 2025 in Matter Number C2025/1120 at [21].

[12] Linfox Australia Pty Ltd v Transport Workers Union of Australia [2013] FCA 659; (2013) 213 FCR 479 at [38] (Rares J).

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