Noorton Pty Ltd v Construction, Forestry and Maritime Employees Union [2025] FCAFC 120

Noorton Pty Ltd v Construction, Forestry and Maritime Employees Union [2025] FCAFC 120 | Case summary | Zoe

[22]

The matter was heard in the FCFCOA on 15 and 16 September 2021 and, on 26 August 2022, the primary judge issued reasons for judgment (initial judgment or IJ): Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd [2022] FedCFamC2G 699. The primary judge made findings that the PHEWV Award applied to Mr Chippindale's employment with Noorton to the extent that he performed work as a GPH or Master on or in relation to vessels operated by Noorton to provide the following services:
- the Manly Fast Ferry service (MFF service), including the Manly Fast Ferry Flyer Service;
- the Sydney Harbour Eco Hopper service (Hopper service);
- the Manly - Darling Harbour Ferry service (MDH service); and
- the whale‑watching service.
The primary judge found that the GPH Agreement or the Officers Agreement only applied to Mr Chippindale when he was engaged on or in relation to vessels used by Noorton to provide charter services and special event services. His Honour also made findings as to the quantification of the alleged underpayments under the PHEWV Award, which are not presently relevant, and ordered that the proceeding be listed for a directions hearing for the purpose of programming a further hearing as to the final relief to be ordered.
After a further hearing on 6 December 2022, the primary judge issued further reasons for judgment on 27 June 2024 and made orders declaring that Noorton had contravened s 45 of the FW Act by failing to pay Mr Chippindale shift allowances provided for by cl 21.1 of the PHEWV Award and requiring Noorton to pay him a sum of $12,301.91 pursuant to ss 545(1) and 547 of the FW Act_: Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd (No 2)_ [2024] FedCFamC2G 568. The matter was listed for a directions hearing to deal with the final question of penalty.
On 9 July 2024, Noorton filed an application for leave to appeal the orders made on 27 June 2024 together with a draft notice of appeal and an affidavit identifying the substantive prejudice which, it was contended, would ensue were leave not to be granted.

[25]

(1) The MFF Service: This was a service operated by Manly Fast Ferry Pty Ltd (MFF P/L), a corporation related to Noorton, under contract with the NSW Government from early 2015. The MFF service consisted of a high-speed commuter service operating between Circular Quay and Manly from 6:15 am to 9:30 pm Monday to Friday, and from 10:00 am to 8:30 pm on weekends and public holidays. Noorton employed the crews for the MFF service and on-hired them to MFF, and also hired the vessels used to provide the service to MFF. There was also another service, the Manly Fast Ferry Flyer Service, which was the same as the MFF service except that it took slightly longer to complete a journey. For the purpose of this decision, we will treat it as part of the MFF Service.

(2) Hopper Service: This was a "hop on/hop off" loop service which ran between various, primarily touristic, locations on Sydney harbour including the Sydney Aquarium, Circular Quay, Luna Park, Fort Denison, Taronga Zoo, Watsons Bay, the Quarantine Station and Manly. The Hopper service operated outside of peak commuting hours seven days per week. In addition, there was a "Beaches Run" which looped between Rose Bay, Watson's Bay and Manly, and operated only on weekends and public holidays. The Hopper Service was operated in accordance with a timetable, and passengers could pre-book tickets, buy tickets on board or use an Opal card. There were a number of ticket options, including for 24 or 48-hour use of the service, a one or two-hour sightseeing loop, or for trips to and from specific locations. Tickets could be purchased combined with entry to certain tourist attractions located near the harbour stops such as Taronga Zoo. Information was provided to passengers on board about points of interest, history, and key sights on Sydney Harbour.

(3) MDH service: This was a commuter ferry service which ran between Manly and Darling Harbour during AM and PM peak hours.

(4) Whale watching cruises: These were operated twice daily, subject to weather conditions, every day from May to November.

(5) Noorton also operated charter services for weddings, family, business and other functions, and conducted special event cruises for events such as New Year's Eve, the Sydney to Hobart yacht race, Australia Day, and Vivid.

[52]

When, on or about 30 June 2009, Noorton lodged the Officers Agreement and the GPH Agreement with the then-Workplace Authority Director in accordance with s 342 of the WR Act, in each case it also lodged a declaration which identified the MCV State Award as the "reference instrument" for the purpose of assessing whether the agreement passed the "no disadvantage test": see WR Act ss 344, 346D, 346E and 346L.
Finally, it is necessary to mention the Manly Fast Ferry Pty Ltd & MUA - Sydney Harbour Ferry - Workplace Agreement 2009 (MFF/MUA Agreement). This agreement was, like the Officers Agreement and the GPH Agreement, an employee collective agreement made under the WR Act which remained in effect as a transitional instrument upon commencement of the FW Act. The MFF/MUA Agreement bound MFF P/L (not Noorton) as the employer, and covered employees of MFF P/L in relation to their employment on or in connection with vessels operating a passenger ferry between Circular Quay and Manly Jetty in the positions of GPH, Ticket Seller/Cashier or Host/Hostess. The reference instrument identified by MFF in its Employer Declaration accompanying the lodgment of the MFF/MUA Agreement with the Workplace Authority Director was the Motor Ferries (State) Award (MF State Award). Like the MCV State Award, this was an award of the Industrial Relations Commission of NSW made under the IR Act, the provisions of which subsequently became terms of a "NAPSA". The MF State Award covered Masters, Engineers and deckhands "employed in and in connection with any motor ferry used in any regular ferry passenger work" (cl 26.1).
It appears that the MFF/MUA Agreement did not have practical operation after 2010, since MFF P/L ceased to provide a fast ferry service between Manly and Circular Quay in that year: IJ at [55]. Although MFF P/L became the operator of the MFF service in early 2015, as earlier stated, Noorton was the employing entity of the employees working on this service rather than MFF P/L.

[57]

The primary judge then turned to the question of whether the PHEWV Award applied. He concluded that the services provided by Noorton "constituted the operation by it of vessels of any type wholly or substantially within a port, harbour or other body of water within the Australian coastline or at sea": IJ at [116]. It was then necessary to determine whether the exclusion in cl 4.1(g) applied - that is, whether Mr Chippindale's employment with Noorton was "wholly or substantially" covered by the MTCV Award. The primary judge said that his conclusion as to the extent to which Mr Chippindale's activities were covered by the MTCV Award meant that it could not be said that they were "wholly" covered by that award, so that the question was whether they were "substantially" covered: IJ at [117]. The primary judge construed "substantially" as meaning the majority of the sum of the activities covered by the PHEWV Award, the MTCV Award and any other award listed in cl 4.1 of the PHEWV Award. Applying that meaning, the primary judge found that the MFF, Hopper and MDH services constituted the "great majority" of the activities which Mr Chippindale undertook as a GPH and Master and, for that reason, those activities were not wholly or substantially covered by the MTCV Award. He therefore concluded that the PHEWV Award covered Mr Chippindale's activities in his employment with Noorton: IJ at [118]-[119].
The primary judge then turned to the question of whether the GPH Agreement and the Officers Agreement applied to Mr Chippindale's employment and, if so, to what extent. In respect of cl 2 of the Officers Agreement and the equivalent provision in the GPH Agreement, the primary judge considered that "engaged" meant directed to undertake and in fact to undertake work as a GPH or Master (as the case may be) on board or in relation to a "commercial vessel", thereby becoming entitled to be paid for the work in accordance with the relevant agreement. Thus, the GPH Agreement and the Officers Agreement would have applied to Mr Chippindale during the Employment Period to the extent Noorton directed him to work on board or in relation to a "commercial vessel" as a GPH or as a Master, and Mr Chippindale performed the work: IJ at [120]-[122].
Next, the primary judge (IJ at [124]) construed the definition of "commercial vessel" in cl 6 of the GPH Agreement and the Officers Agreement. The primary judge (IJ at [125]) took into account four matters of context in this respect:

[61]

The primary judge considered that the construction of "engage" in relation to a vessel as meaning "hiring or securing" the vessel was supported by cl 6 repeating, with modifications, the definition of "charter vessel" in cl 2(i) of the MCV State Award: IJ at [132].
On the basis of his construction of cl 6, the primary judge concluded that neither the Officers Agreement nor the GPH Agreement applied to Mr Chippindale in respect of his work as a Master or GPH respectively in relation to the MFF service because each of the vessels on which Mr Chippindale worked was a passenger ferry and was not used, hired or secured as a tourist, sightseeing or cruise vessel or as a place of or for entertainment, functions or restaurant purposes. This work was therefore covered by the PHEWV Award: IJ at [134]-[138].
In relation to the MDH service, the primary judge determined that the vessels by which the service was provided were ferries used in regular ferry passenger work, and that the service was used for touristic purposes, and promoted as such was incapable of altering the character of the MDH service as consisting of regular passenger work. Further, the evidence did not suggest that any of the vessels used in the MDH service had been engaged in the sense of being hired or secured to be available as a tourist, sightseeing or cruise vessel or as a place of or for entertainment, functions or restaurant purposes. Consequently, the primary judge found that the work performed by Mr Chippindale on MDH service vessels was covered by the PHEWV Award (because neither the Officers Agreement nor the GPH Agreement applied): IJ at [139]-[141].
The primary judge reached the same conclusion, for the same reasons, with respect to the Hopper service: IJ at [142]-[143]. As to Mr Chippindale's work as GPH and Master in relation to charter and special event services, the primary judge was satisfied that the vessels used for these services had been hired or otherwise secured to be available as a tourist, sightseeing or cruise vessels or as places of or for entertainment, functions or restaurant purposes, and that the GPH Agreement and the Officers Agreement therefore applied to Mr Chippindale's work as a GPH and Master respectively on vessels used for these services: IJ at [144].
Finally, as to Mr Chippindale's work on the vessels used by Noorton to conduct whale‑watching services, the primary judge determined that although these services were for a sightseeing purpose, the word "purpose" did not appear in the definition of "commercial vessel" given by cl 6 of each of the Officers Agreement and the GPH Agreement. The primary judge determined that the vessels used for the whale‑watching services did not fall within the cl 6 definition because, first, given that passengers secured the whale‑watching service individually by buying a ticket to board at the appropriate scheduled time, it could not be said that the vessel had been engaged by any one of the passengers as a sightseeing vessel and, second, the vessels were operated according to a regular schedule. It followed therefore that the Officers Agreement and the GPH Agreement did not apply to Mr Chippindale's work on the whale‑watching services, and the PHEWV Award covered this work: IJ at [146]-[147].

[69]

Noorton submits that the primary judge made two errors in construing the definition of "Commercial vessel" in cl 6.1 of the GPH Agreement and the Officers Agreement by reference to which the coverage is articulated. First, the primary judge erred by reading the word "engaged" as meaning engaged by a customer in the sense of hiring or securing the whole vessel by charter. The more obvious construction is that "engaged" means the activities in which the vessel is engaged, not the engagement of the vessel by a customer, and this is confirmed by the last sentence of cl 6.1, which refers to "vessels engaged in the above activities". Second, the primary judge erred by reading down the definition of "commercial vessel" by reference to the MFF/MUA Agreement or the MF State Award as excluding "motor ferr[ies] used in any regular ferry passenger work". Noorton submits that there is no warrant to read down cl 6.1 by reference to the MFF/MUA Agreement or the MF State Award in circumstances where the GPH Agreement and the Officers Agreement make no reference to either instrument, and cl 29.4 of the latter agreements makes express reference to the vessels the subject of the agreements as "ferries". The words of the definition of "commercial vessels" in cl 6.1 ought be given their plain meaning such that the definition is to be taken as referring to vessels that can properly be characterised as being engaged in the activities to which the definition refers. Taking this approach, vessels engaged in whale‑watching cruises and the Hopper service were plainly "commercial vessels" because they were "principally" engaged as tourist or sightseeing vessels. Further, because the three vessels that operated the MDH service also operated the Hopper service and spent most of their time, and transported most of their passengers, on the latter service, these vessels remained "principally" engaged as tourist and sightseeing vessels even when undertaking the MDH service. The same was true, Noorton submits, of one of the vessels used to undertake the MFF service which, from May to November, spent most of its time undertaking whale‑watching cruises.
The respondents submit, in respect of appeal grounds 1 and 2, that the coverage of the GPH Agreement and the Officers Agreement hinged on the nature of the vessel on which the employee was performing work and the role they were performing on the vessel, with the nature of the vessel being detailed in the definition of "Commercial vessel". This definition had, it was submitted, two elements. The first was a geographical or locational requirement that the vessel be wholly or principally engaged within bays, harbours or rivers. The second required that the vessel be "engaged as" a tourist, sightseeing or cruise vessel and/or as a place of entertainment. The respondents submit that "engaged as" can be read as referable to an activity or task, as Noorton contends, or it can mean "hired or otherwise secured" for a particular activity or purpose, as the primary judge found. The context indicates that the latter construction is correct in that the reference award for the agreements, the MCV State Award, covered "charter vessels" - that is, vessels rented, leased or hired for the purpose of transporting goods or people. Further, that the MF State Award was not a reference award for the agreements was contextually salient since it was the MCV State Award and not the MF State Award which the agreements were expressed to replace. Charter vessels captured by the MCV State Award are distinct from motor ferries captured by the MF State Award as the former do not perform regular ferry passenger work.

[70]

It is common ground that whether the GPH Agreement and the Officers Agreement applied to Mr Chippindale's casual employment with Noorton, or any part of it, turns on whether the vessels he worked on fell within the definition of "Commercial vessel" in cl 6.1 of the agreements. There are two constructional issues raised by appeal grounds 1 and 2 with respect to that definition. The first is whether the primary judge erred in determining that the word "engaged" should be read as meaning hired or secured pursuant to a charter arrangement. The second is whether the definition of "Commercial vessel" should be read as excluding ferries used in any regular ferry passenger work.
The principles applicable to the interpretation of enterprise agreements made under the FW Act and other types of collective industrial agreements made under analogous statutory regimes are well-established. The paramount principle is that the task of interpretation focuses on the language of the agreement understood in the light of its industrial context and purpose: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 at [2] per Gleeson CJ and McHugh J. The starting point is the ordinary meaning of the words used, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362; [1989] FCA 369 at 378 (French J); WorkPac Pty Ltd v Skene (2018) 264 FCR 536; [2018] FCAFC 131 at [197] (Tracey, Bromberg and Rangiah JJ). Resort to extrinsic materials to aid the identification of context and purpose is permissible even if textual ambiguity is not apparent: Short v FW Hercus Pty Ltd (1993) 40 FCR 511; [1993] FCA 72at [518]-[519] per Burchett J; King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [123] (Wheelehan J). However, and of particular relevance to this appeal, while an understanding of the context ascertained by the use of extrinsic materials may assist in fixing the meaning of the text, such extrinsic materials cannot displace the meaning of the text nor is their examination an end in itself: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ), applied to the interpretation of industrials instruments in King v Melbourne Vicentre Swimming Club Inc at [123].
As to the first constructional issue, a consideration of the text of cl 6 of the GPH Agreement and the Officers Agreement does not favour the approach taken by the primary judge. The primary judge's interpretation of the meaning of "engaged" in cl 6.1 was informed by the premise that the vessels the subject of the definition of "Commercial vessel" are necessarily chartered vessels - that is, vessels subject to a maritime contract for their hire by the shipowner to another party. However, there is nothing in the text of cl 6.1 which provides support for this construction, since the word "charter" is not used. Nor did any party identify that the word "charter", or any language that might be read as necessarily referable to a maritime charter, is used in any other provision of the agreements (other than in identifying the applicable reference instrument, being the MCV State Award).
The most natural reading of "engaged" in the first sentence of cl 6.1 is that it means "busy or occupied, involved" (Macquarie Online dictionary). This is supported by the fact that the sentence, after the interposition of the qualifying adverbs "wholly or principally" and the prescription of a geographical limitation on the use of a "Commercial vessel", uses the preposition "as" to link the engagement of the vessel with a series of functions or activities. Thus, the sentence may readily be understood as defining "Commercial vessel" by reference to prescribed activities or functions in which it is occupied or involved. As Noorton submits, this is further supported by the second sentence of cl 6.1, where the definition is expanded to include "vessels engaged in the above activities" which operate within a limited distance offshore. Absent from cl 6.1 is any reference to a vessel being engaged by anyone, which might be expected if the definition of "Commercial vessel" was intended to be confined to vessels hired out for use.
Clause 4.1 of the GPH Agreement and the Officers Agreement identifies the objective of the agreements and is thus a significant contextual guide to the interpretation of cl 6.1. The objective of the Officers Agreement was stated to be the implementation of one industrial instrument to apply to Noorton's employees "who are employed on the Company's vessels while the vessels are engaged in commercial Vessel & whale[-]watching operations", and cl 4.1 of the GPH Agreement was substantively in the same terms. While, obviously, this outcome was not achieved in a literal sense because two agreements were made applying to GPHs on the one hand and Master and Engineers on the other, it is clear enough that what was intended was that the agreements should cover the entirety of Noorton's operations as described. This was expressly stated to include whale‑watching services, which those who made the agreements can be taken to have known were conducted directly by Noorton and not via chartering arrangements. It likewise included all use of vessels as "Commercial vessels", defined in a way which made no reference to the chartering of such vessels. The evidence does not indicate that the chartering of its vessels constituted a major part of Noorton's business activities, either at the time the agreements were made or thereafter. However, the construction preferred by the primary judge confined the operation of the agreements to chartering arrangements and thus excluded most of the business activities actually engaged in by Noorton from the operation of the agreements. This construction was therefore at odds with the stated objective of the agreements.
The primary judge's construction of cl 6.1 of the GPH Agreement and the Officers Agreement as confined to the hiring of vessels was primarily the result of contextual matters associated with the MCV State Award. The primary judge relied on the fact that the definition of "Commercial vessel" in cl 6.1 substantially repeated the definition of "charter vessel" in cl 2(i) of the MCV State Award. However, "charter vessel" is not defined in cl 2(i) of the MCV State Award in a way which would indicate that it is confined to vessels which are hired out for the identified purposes; it is only the use of the word "charter" as the subject of the definition which might be taken to suggest this. In cl 6.1 of the GPH Agreement and the Officers Agreement, the word "charter" has been removed from the expression being defined and replaced with the word "Commercial". Thus, even if cl 2(i) of the MCV State Award operated to confine the operation of that award to hired vessels - a matter which, in our view, is subject to considerable doubt - those who made the GPH Agreement and the Officers Agreement deliberately removed the reference to a "charter" when they modified the text of cl 2(i) for the purpose of defining "Commercial vessel". This is a matter of context that is therefore a contra-indicator to the construction preferred by the primary judge.
The primary judge otherwise referred to the identification by Noorton of the MCV State Award as the reference instrument for the application of the "no-disadvantage test" to the GPH Agreement and the Officers Agreement, and the reference in cl 7.1 to the agreements replacing the MCV State Award, but neither of these matters indicates that the agreements were intended to have the same scope of application as the MCV State Award, even if that award is read as confined to maritime chartering.
Accordingly, we consider that the primary judge erred in reading cl 6.1 of the GPH Agreement and the Officers Agreement as being confined to circumstances where Noorton's vessels are hired out to a third party.
The second constructional issue concerns the primary judge's implication of an exclusion of ferries used in any regular ferry passenger work from the definition of "Commercial vessel" in cl 6.1. No such exclusion appears in the text of the provision. The implied exclusion was not founded on any analysis of the text of cl 6.1, but rather rested entirely on the primary judge's consideration of contextual matters extrinsic to the GPH Agreement and the Officers Agreement. It may be accepted that it would not have been contemplated when the agreements were made that they would apply to the Circular Quay-Manly Jetty ferry service, since this service was conducted by MFF P/L, a separate corporate entity. But there is no reason to think that the engagement of any vessel, wholly or principally, in the functions or activities described in cl 6.1 within the scope of the prescribed geographical limitation was intended nonetheless to be excluded from the operation of the agreements merely because the use of the vessel could also be characterised as a ferry passenger service - because, for example, it operated according to a regular schedule or involved the public sale of passenger tickets.
The next question is whether the primary judge's erroneous construction of the definition of "Commercial vessel" in cl 6.1 of the GPH Agreement and the Officers Agreement vitiated his conclusions as to the application of the agreements to the various categories of services undertaken by Noorton. As earlier set out, Noorton contends that those vessels which were wholly or principally engaged in the whale‑watching service or the Hopper service were covered by the agreements and were therefore not covered by the PHEWV Award.
It is clear, and the primary judge accepted (IJ at [145]), that the whale‑watching service had sightseeing as its only purpose. We also accept Noorton's submission that the vessels used for the Hopper service may be characterised as operating "wholly or principally" as tourist and sightseeing vessels while that service was being undertaken. The service was marketed to tourists, operated outside of AM and PM peak commuter periods, transported passengers between tourist locations, sold "package" tickets which included access to some tourist locations, and involved at least some element of Sydney Harbour sightseeing by virtue of the "loop" routes which it undertook and the inclusion of audio commentary on points of interest. It does not matter that the Hopper service also had some characteristics of a passenger ferry service since, for the reasons already stated, there was no exclusion of such services in cl 6.1 of the agreements, and those characteristics do not negate the operation of the vessels used for the Hopper service as engaged "wholly or principally" as tourist and sightseeing vessels, as examined below.
The effect of cl 2.1 of the GPH Agreement and the Officers Agreement is that the agreements cover GPHs and Masters and Engineers respectively whenever they work on or in connection with a "Commercial vessel". A vessel is a "Commercial vessel", for the purpose of the definition in cl 6.1, if it is "wholly or principally" engaged in the activities or functions described within the prescribed geographical location. This requires a functional analysis of each vessel operated by Noorton.
Only one vessel was "wholly" engaged in the whale‑watching service (together with charter and special event services). No other vessel was "wholly" engaged in either the whale‑watching or the Hopper service, so it is necessary to examine whether any vessel was "principally" engaged in these services. "Principally", on its ordinary meaning, means "chiefly, mainly" (Macquarie Online Dictionary), and connotes something more than a mere majority.
Mr Ford's evidence as to vessel usage which has been set out above establishes, in our view, that the three vessels which performed a mixture of MDH service work and Hopper service work were "principally" engaged in the latter service. His evidence was that the proportion of the service hours of these vessels devoted to the Hopper service ranged from 68 per cent as a minimum to 83.5 per cent as a maximum in the period from March 2016 to the end of Mr Chippindale's period of employment by Noorton.
Noorton also contends that one of the two vessels used on the MFF service during the AM and PM peaks, which was otherwise used for whale‑watching cruises during the May-November period, was "principally" engaged as a tourist or sightseeing vessel because of the proportion of time it was used for whale watching. Mr Ford's evidence does not substantiate this if the analysis is conducted across the entire year because outside the May to November period no whale‑watching cruises were conducted. However, it may be accepted that his evidence demonstrates that, during the whale‑watching season, this vessel was "principally" engaged as a tourist or sightseeing vessel, bringing it within the scope of the GPH Agreement and the Officers Agreement in this period.
We therefore conclude, in respect of appeal grounds 1 and 2, that:

[73]

Noorton submits that the primary judge misconstrued the coverage provisions of the MTCV Award in three ways. First, it submits that the primary judge erred by construing the word "charter" in the definition of "marine tourism and charter vessel industry" in cl 3.1 as referring to the hiring out of a vessel and that, correctly construed, "charter" simply refers to any passenger-carrying trip and does not require the hiring out of the vessel. Noorton submits in this respect that:
- The definition uses the terms "day charter" and "overnight charter" in contradistinction to each other to distinguish day trips from overnight trips and to cover both.
- The primary judge's approach leaves the MTCV Award with a very narrow scope of coverage. The circumstances pertaining to the making of the MTCV Award, including the NAPSAs it was intended to replace, indicate that the MTCV Award was intended to cover marine tourism activities generally.
- The defined term "marine tourism and charter vessel industry" suggests that the industry is not limited to charter vessels but includes other (non-charter) marine tourism vessels.
- The primary judge's construction leaves the "carve-out" for ferry operations in the definition with no work to do, since a ferry engaged in regular passenger or commuter transport is obviously not being hired out.
- Clauses 14.5, 14.6 and 20.5 of the MTCV Award use the terms "voyage", "tour" and "trip" interchangeably with "charter".
- Clause 10.3(b) requires an employer to inform a casual employee, on engagement, of the "likely time periods or trips the employee will be required to work". This clause contemplates predictable "time periods" and is inconsistent with the MTCV Award being concerned only with the hiring out of vessels, which would be inherently ad hoc and unpredictable.
Second, Noorton submits that the primary judge misconstrued the definition of "marine tourism and charter vessel industry" as excluding any scheduled passenger services regardless of the purpose of the service. In doing so, the primary judge disagreed with the construction of the definition stated in the FWC Full Bench decision in Fantasea, which, it submitted, was the correct construction. It was not sufficient for a service to fall within the ferry exclusion merely because it operates according to a schedule in circumstances where the principal purpose of the service is touristic in nature.
Third, Noorton submits that the primary judge erred in finding that the MTCV Award covered Noorton only to the extent that it operated a vessel of the kind referred to in the definition of "marine tourism and charter vessel industry" and covered Mr Chippindale only when he worked on such vessels. Rather, the MTCV Award is expressed as an industry award in cl 4.1, so that once an employer is found to be in the "marine tourism and charter industry", the award covers that employer (and their employees in the relevant classification).
On the basis of a correct construction of the definition of "marine tourism and charter vessel industry", Noorton submits that Mr Chippindale's employment was wholly covered by the MTCV Award to the exclusion of the PHEWV Award. Noorton engaged in activities within the "marine tourism and charter vessel industry", as defined, and Mr Chippindale's work duties closely aligned with the duties listed in cl B.2 of the MTCV Award. The PHEWV Award did not cover Noorton because Noorton and its workforce were "substantially" covered by the MTCV Award, thus engaging the exception to coverage in cl 4.1(g) of the PHEWV Award. Noorton's charter and special event services, the whale‑watching service and the Hopper service all fell within the definition of "marine tourism and charter vessel industry", and a majority of the vessels operated by Noorton during the relevant period fell within that industry definition.
Alternatively, Noorton submits that, for the purposes of cl 4.9 of the PHEWV Award and cl 4.7 of the MTCV Award, the classifications in the latter award were more "appropriate" for Mr Chippindale because his work on vessels falling within the definition of "marine tourism and charter vessel industry" made up a very substantial proportion of his work, and the duties listed in the classifications in the MTCV Award specifically aligned with Mr Chippindale's duties in a way that the duties in the PHEWV Award's classifications did not, which did not materially differ between the services.
The respondents submit that the word "charter" in the definition of "marine tourism and charter vessel industry" in cl 3.1 of the MTCV Award should be given its ordinary meaning, namely engagement on a vessel that is hired out for a specific journey. The word "charter" does not refer to a vessel engaged or utilised by Noorton for a conventional passenger-carrying trip. The distinction between day and overnight charters, the history of the making of the MTCV Award, and the use of the words "marine tourism" in the title of the award do not alter this position. The references to "voyage" and "tour", as well as "charter" in cll 14.5-14.6 do not allow for cl 3.1 to be read down or for the word "charter" to receive the bespoke and unnatural meaning for which Noorton contends. Finally, the respondents submit, there is no basis for the assertion that employers engaged in chartering vessels will necessarily only have work available that is ad hoc and unpredictable.
In relation to the ferries exclusion, the respondents submit that Noorton relies upon a "gloss impermissibly placed" on the exclusion in Fantasea, in which the Full Bench erroneously inserted qualifying and additional words into the exclusion, thereby recasting and revising the clause rather than construing it. As to Noorton's submission concerning the industry coverage of the MTCV Award, the respondents submit that employers may, and often do, operate in multiple industries. An employer may operate in one industry in one area of its business activities and be covered by an award in that area, and when operating in another industry it may be covered by a different award. They also submit that Noorton's construction would mean that the ferries exclusion in cl 4.2 (that the MTCV Award does not cover the operation of ferries in regular scheduled passenger and/or commuter transport) would have no work to do, and should be rejected for that reason.
Because, the respondents submit, Noorton's challenge to the primary judge's construction of the coverage provisions of the MTCV Award should be rejected, there was as a consequence no error in the primary judge's conclusions concerning the application of the PHEWV Award. In relation to Noorton's submission that it and its workforce were substantially covered by the MTCV Award, the respondents submit that the primary judge's finding at IJ [118] that the MTCV Award did not substantially cover Mr Chippindale's employment with Noorton was in any event correct. Finally, the respondents submit that the classifications under the PHEWV Award were more appropriate to the work performed by Mr Chippindale and the environment in which he performed the work, given that the bulk of the work he performed was not on charter vessels performing touristic work.

[74]

In light of the conclusions reached with respect to grounds 1 and 2 of the appeal, the consideration necessary to determine grounds 3, 4, 5 and 6 is limited to the question of whether the primary judge erred in concluding that the PHEWV Award rather than the MTCV Award applied when Mr Chippindale performed work on vessels other than those identified in [66(b)] above - that is, those that were wholly or substantially engaged on the MFF service (MFF vessels). As shall be explained, that makes it unnecessary to determine a number of the issues Noorton has raised concerning the construction of the coverage provisions of the MTCV Award.
It is clear in our view that the MFF service did not fall within the definition of "marine tourism and charter vessel industry" in cl 3.1 of the MTCV Award, not least because the exclusion of "the operation of ferries engaged in regular scheduled passenger and/or commuter transport" applied. Noorton did not contend otherwise in this appeal. It is equally clear that, unless the exclusion in cl 4.1(g) of the PHEWV Award applied, the MFF service was covered by the PHEWV Award since it involved "the operation of vessels of any type wholly or substantially within a port, harbour or other body of water within the Australian coastline". The PHEWV Award classifications of GPH and Master applied to the work performed by Mr Chippindale on the MFF Service.
Noorton's submission that, once it could be characterised as operating in the "marine tourism and charter vessel industry" (as defined), the MTCV Award covered it and its employees who fall within the MTCV Award classifications, subject only to the operation of cl 4.7 of the MTCV Award (appeal ground 4), cannot be accepted in the terms in which it was articulated in Noorton's submissions. It is well-established, and Noorton accepts, that an employer may operate in more than one industry. In that circumstance, different industry awards may cover different parts of the employer's business. Difficulty arises only if the coverage of industry awards overlaps with respect to a particular area of employment.
In this case, the PHEWV Award and the MTCV Award are both expressed in terms of their respective coverage as industry awards. The related nature of the industries which they are described as covering plainly gives rise to the potential for overlapping coverage. Both awards contain provisions to assist in resolving such situations. The ferries exclusion in the definition of "marine tourism and charter vessel industry" in the MTCV Award operates to resolve one area of potential overlap in favour of the PHEWV Award. Clause 4.1(g) of the PHEWV Award is another mechanism which operates, where it applies, in favour of the MTCV Award. Finally, cl 4.9 in the former award and cl 4.7 in the latter serve as a last-resort mechanism for resolution of overlapping coverage with respect to particular employees.
The exclusion in cl 4.1(g) calls for consideration as to whether the "employers and employees" were "wholly or substantially" covered by the MTCV Award. Therefore, in order for the ferries exclusion to apply, the employer must be wholly or substantially covered by the MTCV Award with respect to the work of the employees in question.
Noorton does not contend that it was "wholly" covered by the MTCV Award in respect of Mr Chippindale's employment, so attention must focus on whether it was "substantially" covered. "Substantially" was construed by the primary judge to mean "the majority - that is, over 50% - of the sum of Mr Chippindale's activities as a GPH and as a master": IJ at [118]. That construction was not challenged by Noorton in the appeal, which likewise took a majoritarian approach to the analysis in its submissions (albeit this approach was flawed for other reasons, as discussed below). We consider that it is an appropriate approach since it would not be an industrially sensible outcome for the coverage of the MTCV Award to prevail over that of the PHEWV Award where only a minority of the work performed by the employee(s) in question was covered by the former award. The use of "substantially" in the drafting of cl 4.1 of the PHEWV Award to deal with a situation of overlapping award coverage may reflect the traditional "major and substantial" test used to determine which award applies in such a situation. This test is both quantitative and qualitative in nature: see, for example, Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696 at [38]-[39] (Logan J). That is, it is not merely a matter of quantifying the time spent on the work performed by the employee; the quality of the (different types of) work done is also a relevant consideration.
Even if Noorton's contentions about the construction of the coverage provisions of the MTCV Award were to be accepted, the evidence does not permit the conclusion that Mr Chippindale's employment was substantially covered by the MTCV Award. Noorton adduced below an analysis of Exhibit 1, being the records concerning all the shifts worked by Mr Chippindale while employed by Noorton, which categorised those shifts according to whether they were for the MFF service, the Hopper service, the whale‑watching service or charters. That analysis did not expressly include the MDH service. It is unclear whether shifts during which Mr Chippindale worked on this service were counted as part of the Hopper service (because, as earlier discussed, the vessels used for the MDH service were also used for the Hopper service for the majority of their service hours), or were counted on some other basis, or were not counted at all. In any event, the analysis showed that, of a total of 885 shifts worked by Mr Chippindale during his employment, 582 shifts, or almost 65 per cent of the total, were worked on the MFF service. The respondents in this appeal provided an analysis of Exhibit 1 (MFI 1) which showed that 68 per cent of shifts were for the MFF service, but this appears to contain some minor transposition errors. Thus, even assuming in Noorton's favour that all of Mr Chippindale's work other than for the MFF service was covered by the MTCV Award, it does not amount to more than about a third of his work. It would be less than this if the MDH service was counted as part of the Hopper service, since the MDH service was undoubtedly also a passenger ferry operation not falling within the "marine tourism and charter vessel industry" definition in cl 3.1 of the MTCV Award. Noorton did not contend otherwise in the appeal.
Noorton did not point to any qualitative factor which might support the conclusion that the purpose or essential nature of Mr Chippindale's employment was at odds with the large majority of duties actually performed by him. Instead, it attempted to construct a majority of MTCV Award work based on an analysis of which vessels might notionally be regarded as performing services within the "marine tourism and charter vessel industry". Even on its own terms, the analysis is problematic because Mr Ford's evidence demonstrates that, across Noorton's vessel fleet, an absolute majority of vessel service hours were for the MFF service, and service hours for the MDH service would need to be added to this to obtain the total of service hours undertaken on work not within the "marine tourism and charter vessel industry". More fundamentally, the analysis is not directed at Mr Chippindale's particular employment. For example, one of the 10 vessels was wholly allocated to the whale‑watching service, charters and special events, but Noorton's analysis of the shifts worked by Mr Chippindale showed that only 47 of the 885 shifts worked by him (5.3 per cent) were for these types of service.
The evidence therefore does not establish that Mr Chippindale's employment was substantially covered by the MTCV Award. It establishes rather that the PHEWV Award substantially covered his employment. Accordingly, cl 4.1(g) of the PHEWV Award did not operate to exclude Mr Chippindale's employment from the coverage of that award, even assuming that the coverage provisions of the MTCV Award are construed in the way for which Noorton contends. Therefore, this aspect of Noorton's challenge to the primary judge's finding that the PHEWV Award applied to the MFF service work must fail.
The final basis upon which Noorton challenges this finding is that, by virtue of the operation of cl 4.9 of the PHEWV Award and cl 4.7 of the MTCV Award, the latter award covered Mr Chippindale's employment to the exclusion of the former because its classifications were more appropriate to the work he performed and the environment in which he normally worked than those in the PHEWV Award. There is no indication in the record of the proceedings below as contained in the appeal book that Noorton ever raised this argument as a defence to the claim. The primary judge did not advert to the issue in the initial judgment. The principles governing the conduct of appeals do not permit new arguments to be raised for the first time in an appeal which could possibly have been met by calling evidence below: see, for example, Soliman v University of Technology, Sydney [2009] FCAFC 159 at [5]. However, this point was not taken by the respondents. The appropriate course is therefore to determine this argument on the basis of the limited evidence bearing upon it.
The issue of which award classification is "most appropriate" is to be determined by reference to the primary purpose of the employment in question, the range of tasks for which the employees were trained, and the classification which is the more comprehensive match with the work in question: Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd (2014) 245 IR 449; [2014] FCAFC 148 at [31]- [35] (Siopis, Buchanan and Flick JJ); Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [302] (White J); Health Services Union v Catering Industries (NSW) Pty Ltd (2023) 324 IR 337; [2023] FCAFC 82 at [106] (Katzmann, Snaden and Raper JJ).
The evidence about the duties performed by Mr Chippindale was limited, and the primary judge made no firm findings about this. He recorded the evidence which was given about this in the following way (IJ at [74], [76]-[77]):

[78]

However, Mr Chippindale gave evidence in his reply affidavit that he had never been provided with a script to read out or trained in this, and it was done by pre-recorded message. He affirmed this evidence in cross-examination, although he conceded that it was possible that other employees may have done this.
Therefore, the evidence concerning the proportion of Mr Chippindale's duties that were undertaken on the MFF service, and the nature of his duties, does not support the proposition that the classifications in the MTCV Award were more appropriate to Mr Chippindale's employment. The evidence does not establish that Mr Chippindale undertook hospitality functions to a degree consistent with his role being of a touristic quality, having undertaken only two shifts involving a "charter". His duties were therefore entirely, or almost entirely, confined to the duties of a GPH or Master associated with the safe operation of a passenger vessel. In the large majority of his shifts, these duties were undertaken in the environment of the MFF service, which was otherwise covered by the PHEWV Award.
There is no dispute that the classifications of "General Purpose Hand" and "Master" in the PHEWV Award were capable of application to Mr Chippindale's employment in these respective roles. The classification descriptors in the MTCV Award for a "Crew Level 1" and "Crew Level 2" are substantially made up of hospitality-type duties such as "the service, hospitality and entertainment of passengers", "the stocking and dispensing of liquor under direction of licensee", "the preparation of meals" and "the ordering of stores". These duty descriptions are inapt for Mr Chippindale's employment because the evidence does not establish that he ever performed any of them. There is also a reference to "the setting, trimming, and striking of sails as required", which was plainly inapplicable.
The MTCV Award does not contain any classification for a GPH as such. It contains two Master classifications, which apply to navigation of a "vessel of class V status" and a "vessel of class IV status" respectively. The evidence does not establish whether Noorton's vessels fall within these classes such as to make these classifications applicable. Both Master classification descriptions also require Masters to "entertain passengers". Again, the evidence does not establish that Mr Chippindale was ever actually required to do this.
For these reasons, Noorton has not established that the MTCV Award classifications are more appropriate to cover Mr Chippindale's employment, and its challenge to the primary judge's finding that the PHEWV Award covered the MFF service work must therefore fail. In our view, the PHEWV Award classifications more appropriately applied to Mr Chippindale's employment.
The outcome is therefore that the PHEWV Award applied when Mr Chippindale worked shifts on the MFF vessels, which constitute that part of Mr Chippindale's work which remains for consideration consequent upon Noorton's success in respect of appeal grounds 1 and 2. Beyond stating this conclusion, it is not necessary to determine appeal grounds 4, 5 and 6 because they are incapable of altering this conclusion. That is, even assuming in Noorton's favour that all the work performed by Mr Chippindale apart from that conducted on the MFF vessels was covered by the MTCV Award, it remains the case that the PHEWV Award covered, and applied to, the MFF vessel work. To the extent that, by ground 3 of the appeal, Noorton contended otherwise, that ground is rejected.

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