s.739 - Dispute resolution

The Australian Institute of Marine and Power Engineers

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]

• [1] An application was made by the Australian Institute of Marine & Power Engineers (AIMPE) regarding a dispute about clause 60 of the ASP Ship Management/TT-Line Fleet Officers Enterprise Agreement 2021 (the Agreement). The Australian Maritime Officers Union (AMOU) made a joint submission with AIMPE (the Unions). ASP Ship Management Pty Ltd (ASPSM) is the respondent.

• [2] The dispute is about the ban on the consumption of alcohol by TT-line Company Pty Ltd (TT-line) on the Spirit of Tasmania IV's (SPOT IV) delivery voyage from Scotland to Australia, departing 26 May 2025. TT-line is a client of ASPSM. Under the Agreement, it is a condition of employment that all ASPSM employees are subject to the Company or client's drug and alcohol policies.

• [3] I conducted a conference on 19 May 2025, but the parties were unable to resolve the dispute. Due to the vessel being scheduled to depart Scotland on 26 May 2025, and the Fair Work Commission's (Commission) obligation under s 577 of the Fair Work Act 2009 (Cth) (the Act) to deal with matters efficiently and without unnecessary delay, I determined to list the matter for Hearing on 23 May 2025.

• [4] I issued Directions and gave the parties the opportunity to make submissions and file any evidence on the three questions for determination. My Chambers compiled the materials into a digital hearing book (DHB), which was admitted and marked Exhibit 1 with no objections from the parties.

• [5] The Unions objected to ASPSM being legally represented; however, I granted permission to be represented, under s596(2)(a) of the Act.

• [6] At the conclusion of the Hearing on 23 May 2025, I gave my decision on the three questions for determination, as follows:

1. Does the ASP Ship Management/ TT-Line Fleet Officers Enterprise Agreement 2021 apply to employees on Spirit of Tasmania IV? YES
2. Have steps 1 and 2 of the Dispute Settlement Procedure at Clause 11 of the Agreement been followed? YES
3. Is the imposition of a ban on alcohol onboard the Spirit of Tasmania IV inconsistent with Clause 60 of the Agreement? YES

• [7] These are the reasons for my decision.

• [8] The following provisions of the Agreement are relevant to the dispute:

Vessel - Any one of the following: MV Spirit of Tasmania I, MV Spirit of Tasmania II, their replacements or any other vessel agreed between the parties pursuant to clause 3.

3.1 This Agreement is made between the AIMPE, the AMOU and the Company and covers the Employees who are, or are eligible to be, members of AIMPE or AMOU on or in connection with the Vessel defined above and any replacement or successor Vessels.

3.2. This Agreement covers all Employees (including Cadets) whilst they are working on the Vessel.

3.3. However, Cadets are not entitled to any payments and benefits under this Agreement except as set out in Schedules 4 and 5. Notwithstanding clause 5(a), incorporated Award terms apply to Cadets except to the extent of any inconsistency with Schedules 4 and 5.

3.4. This Agreement does not cover electrical work normally done by third-party contractors in port or in a dockyard, nor manufacturer's installations/service or warranty-work. However, it does cover all other Electrical work performed by the following employees: the Chief Engineer and other Engineers and (where such classification is part of the manning of the vessel) Electrician(s), as instructed by the Chief Engineer, pursuant to this Agreement. Where a person holding an Electrician's Trade qualifications or ETO certificate is employed as part of the vessel's complement in a classification other than as Chief Engineer, Engineer, Electrician, Electrical Technical Officer or Electrical Engineer, then it is agreed that such a person shall not perform electrical work unless expressly instructed to do so by the Chief Engineer and is at all such times subject to the authority of the Chief Engineer; and such a person shall be entitled to all the provisions (including Leave Accrual) of this Agreement, as if he/she were a "Second Engineer" under this Agreement.

Clause 5. Relationship with other Awards, NES and Agreements

(g) Where the vessels crew are engaged under an Seafarers Employment Agreement, all the terms and conditions of this agreement shall be part of the Seafarers Employment Agreement entered into by an employee in respect of service on a vessel under this agreement.

11.1. All disputes relating to matters arising under the Agreement or the NES or in relation to the interpretation or application of this Agreement shall be dealt with in accordance with these procedures. The parties to this Agreement undertake to resolve any grievances or industrial disputes on the basis of goodwill, consultation, discussion, open communication and disclosure of all relevant facts. To this end, it is the intent of all parties to this Agreement to resolve all disputes in a timely manner.

11.2. Where a grievance, complaint, claim or any matter (other than an operational matter) which is likely to result in an industrial dispute arises between the Employer and an employee or group of employees, the following procedure will be applied:

• The employee/s concerned, or if so requested his/her representative, will meet and confer with the Chief Engineer/Master or other designated Employer's representative to communicate the specific nature of the problem or request.

• If the matter is unable to be resolved by discussion at the shipboard level, then the matter shall be referred to Company management and/or the employee may refer the matter to his/her chosen representative.

• Should the above process be unsuccessful, or a matter arises of significant importance to the operation of the fleet, senior management and the employee(s) concerned, or if so requested by the employee(s) their nominated representative(s), will confer as expeditiously as possible, and will attempt to settle the matter.

• The matter will be referred for discussion between the National Union delegate or other employee representative, and the Employer's representative.

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

11.3. It is the intention of the parties that in fulfilment of this clause, the FWC shall exercise any of its powers and functions, including but not limited to those normally associated with conciliation, arbitration and Section 739(4) of the Act. Accordingly, the parties expressly confer upon the FWC a full range of powers and functions necessary to resolve the matter or matters in dispute or in breach.

11.4. During the term of this Agreement and subject to the understanding that the previous status quo will continue to apply, employees will continue to work in accordance with this Agreement whilst the matters in dispute are resolved in accordance with the above procedures.

11.5. These provisions will not affect in any way any other rights and duties of either party pursuant to the Act or any other act or at common law in relation to any matter.

An employee engaged for or on a vessel in an overseas port or a vessel to be delivered to an overseas port will, subject to any medical and/or governmental requirements, be immediately available for travel and/or duty and no claim for leave or time off duty in excess of the agreement prescription in relation to such engagement or employment will be made or granted. Provided that an employee who is required to travel to an overseas destination to pick up a vessel for its delivery voyage shall, prior to departure from Australia, be permitted to a period of three days, including the day of engagement, for the purposes of making all necessary travelling arrangements etc including compliance with medical and governmental requirements.

The Company undertakes to consult with the affected employee(s), or their representative should they choose one, regarding appropriate scheduling to ensure that employees have adequate rest before the commencement of duties.

60.1. Where a vessel has more than one bar/recreation room, the Company shall designate one of these for the exclusive use of Officers with suitable facilities for alcohol, as per past practice.

60.2. All employees must recognise that the use of alcohol to "wind-down" or socialise must, even when off-duty, be balanced against their responsibility to be able to respond to alarms or any emergency together with the express blood alcohol limits proscribed by the Navigation Act and/or ASPSM policies.

60.3. Any general policy regarding alcohol consumption will:

60.3.1. if it relies only on positive/encouragement methods (e.g. the Company might subsidize the price of low-strength beer) may be adopted at any time; however

60.3.2. if it involves any negative/compulsory measure (e.g. eliminating spirits or closure of the bar for more than 2 days as a temporary measure in response to a problem in relation to persons using that bar) then such policy will not proceed unless discussed and expressly agreed by the affected employee(s) or their representative should they choose one.

60.4. Any instances of individual alcohol abuse should be dealt with as an individual matter, according to the merits of the case, and may involve resort to counselling and/or ultimately disciplinary action and/or dismissal.

60.5. Attention is drawn to the Navigation Act which provides "for-cause" breathalyser testing on grounds of reasonable suspicion. In addition, the parties will negotiate and reach agreement on any policy that provides for further drug testing.

60.6. It is a condition of employment that all ASPSM employees are subject to the Company or client Drug and Alcohol Policy and procedures for drug and alcohol testing.

• promoting the health and welfare of seafarers employed by the Company; and
• maintaining a safe and efficient shipboard environment and in turn expects all seafarers in its employ to be:

• capable of carrying out their normal duties and responsibilities; and
• ready and able to respond to an emergency at any time during their period on Articles.

• [9] In James Cook University v Ridd, the Full Court of the Federal Court of Australia summarised the principles of interpretation of enterprise agreements as follows:[1]

• The starting point is the ordinary meaning of the words read as a whole and in context.
• A purposive approach is preferred to a narrow or pedantic approach - the framers of such documents were likely to be 'of a practical bent of mind.' The interpretation 'turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.'
• Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to '... the entire document of which it is a part, or to other documents with which there is an association.'
• Context may include 'ideas that gave rise to an expression in a document from which it has been taken.'
• Records may be had to the history of a particular cause 'where the circumstances allow the court to conclude that a clause in an award is the product of a history out of which it grew to be adopted in its present form...'
• A generous construction is preferred over strictly literal approach, but 'Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.'
• Words are not to be interpreted in a vacuum, divorced from industrial realities, but in the light of the customs and working conditions of the particular industry.

• [10] The Commission's jurisdiction to resolve disputes under an enterprise agreement arises from the terms of the Agreement. Section 739 of the Act makes it clear that, in circumstances where an enterprise agreement provides a procedure for settling a dispute, the Commission's powers to deal with that dispute are limited by the relevant dispute resolution term. If, in accordance with the term, the parties have agreed that the Commission may arbitrate the dispute, the Commission may do so. The Commission may only deal with a dispute on application by a party to the dispute and it cannot make a decision that is inconsistent with the Act or a Fair Work instrument that applies to the parties.

• [11] ASPSM submits that the Commission lacks jurisdiction to deal with the dispute because:

1. TT-line is not a party to the Agreement, and the Agreement does not impose any obligations on it.

1. TT-line's decision to not permit crew to consume alcohol on the SPOT IV is not a matter arising under the Agreement and sits wholly outside the Agreement.

1. The Agreement does not apply to ASPSM employees on the SPOT IV because it is not a replacement vessel or successor vessel for Spirit of Tasmania I and II, nor is it a vessel agreed between the parties under clause 3 of the Agreement.

• [12] ASPSM submits that the Commission can only arbitrate a dispute under clause 11 to the extent that it is limited to a dispute between AIMPE, AMOU and ASPSM. It says that the decision not to permit alcohol on SPOT IV was made by TT-line, who is not a party to the Agreement under clause 11.

• [13] It is not contested, and I accept, that TT-line is not a party to the Agreement and that they are not covered by the Agreement, nor does the Agreement impose any obligations on it. However, for the reasons set out below, I do not consider that this prevents the Commission from arbitrating the dispute under the Agreement.

Is the ban by TT-line, on the consumption of alcohol a matter arising under the Agreement?

• [14] ASPSM submits that TT-line's decision regarding SPOT IV sits wholly outside the Agreement. The Unions submit that this dispute falls within clause 60 of the Agreement and that Clause 11 applies.

• [15] In United Firefighters' Union of Australia v Fire Rescue Victoria [2024] FCAFC 84 the Full Court of the Federal Court of Australia considered the nature of the exercise of the arbitral power under dispute resolutions clauses. Relevantly, the Court made the following observations:

(a) The Commission exercises private arbitral powers when arbitrating disputes under a dispute resolution clause in an enterprise agreement (at [10]).

(b) The scope of powers the Commission may exercise in the performance of its arbitral function are primarily defined by the terms of reference given to it and supplemented by the powers conferred on it by Parliament (at [10]).

(c) Courts generally adopt a "broad, liberal and flexible approach", favouring a construction giving effect to the parties' intention to submit disputes to an arbitral process and, in doing so, favour a construction that provides a single forum for adjudication (at [11]).

(d) Challenges to the Commission's purportedly erroneous exercise of its private arbitral power have involved circumstances which include where it is alleged that a step in the dispute resolution procedure has not been followed and where the Commission sought to decide an issue which it had no authority to decide (at [12]).

(e) The Court's power to review decisions made in the exercise of the power falls to be determined by reference to common law principles (at [13]).

(f) Whilst the common law courts have asserted a jurisdiction to set aside arbitral awards on the basis of demonstrated error of law on the face of the award it cannot now be said to be a general jurisdiction akin to error of law on the face of the record as a basis for review of administrative action (at [14]).

(g) In considering the scope of available review of an arbitral award by the Commission, there may need to be regard to the fact that the private arbitral power is entrusted to a public official in the form of the Commission. However, as the power being exercised is private and not governmental or public in nature, it is not susceptible to the issue of constitutional writs (at [15]).

(h) Arbitral awards may be reviewed on the basis of an alleged failure by the Commission to complete its arbitral function. Arbitral awards have been reviewed on such a basis (at [16]).

(i) Provided the Commission undertakes its arbitral task by reference to the terms of the industrial instrument and conforms with the limits of what is required to discharge that arbitral function, then it acts in accordance with what is required under s 739(5) of the Act (at [18]).

(j) Section 739(5) of the Act does not alter the character of the arbitration undertaken by the Commission under an enterprise agreement in the terms of the agreement. Where the Commission reaches the wrong conclusion, it does not mean that the Commission overstepped the limitations in s 739(5) (at [18]).

• [16] These observations describe a broad power of arbitration that is confined only by the terms of the dispute settlement procedure under the relevant agreement and the terms of s 739 of the Act.

• [17] ASPSM says that this dispute is about the policy of TT-line; not a policy of ASPSM. Therefore, the TT-line policy sits wholly outside the Agreement and cannot be a matter arising under the Agreement. ASPSM says the parties could not and have not agreed to arbitrate disputes about third party operational or policy decisions. It says that this is illustrated by the fact that ASPSM cannot do anything about TT-line's decision to ban the consumption of alcohol on SPOT IV. It says neither party can influence or change the TT-line policy and that a decision made by a stranger to the agreement cannot bear upon the interpretation of the clause.

• [18] ASPSM also says that the inability to do anything about the policy has significant consequences because of the potential for there to be a finding that ASPSM has contravened the Agreement. I am not persuaded this is an argument which has any bearing on whether the matter can be arbitrated under clause 11 of the Agreement.

• [19] I do not accept that this is not a matter arising under the Agreement. It is clear, from the words used by the parties in clause 60.6 that they have agreed to arbitrate disputes about client drug and alcohol policies. Clause 60.6 expressly contemplates the very circumstance which gives rise to this dispute; compliance with the drug and alcohol policy of a client. It was open to the parties to have an agreement where there was no reference made to client policies. They did not.

• [20] ASPSM says that this dispute arises out of the policy itself, rather than from the obligation to adhere to the policy which arises under clause 60.6. The challenge with this argument is that clause 60.6 requires ASPSM employees covered by the Agreement to comply with a client's drug and alcohol policies. This dispute arises because the ASPSM employees have been told they must comply with TT-line's policy. However, to comply with the client's policy, an employee must know what the policy is, particularly as non-compliance could result in disciplinary action.

• [21] Clause 11 confers a broad power of arbitration on the Commission to deal with all disputes relating to matters rising under the Agreement, NES or in relation to the interpretation or application of this Agreement. I also consider the words 'the parties expressly confer upon the FWC a full range of powers and functions necessary to resolve the matter or matters in dispute or in breach, contained in clause 11.3 empowers the Commission to arbitrate this dispute. Clients drug and alcohol policies are expressly contemplated in clause 60.6 of the Agreement. I consider this dispute is about whether a policy of the kind referred to in clause 60.6 exists and if so, the effect of it.

• [22] I am satisfied that this dispute relates to matters arising under the Agreement and that the Commission has jurisdiction to deal with the dispute.

Question 1. Does the ASP Ship Management/ TT-Line Fleet Officers Enterprise Agreement 2021 (the Agreement) apply to employees on Spirit of Tasmania IV?

• [23] The Unions say that the Agreement applies to employees on SPOT IV because:

• The Agreement covers employees on vessels which includes 'replacement' or 'successor' Vessels.
• There is a Memorandum of Understanding (MOU) between the parties which describes the Agreement as applying to SPOT IV.
• The wording of 'or other vessel agreed between the parties in the Definition of the Vessel is clearly satisfied by the intent and purpose of the MOU;
• The Seafarers Employment Agreement attached to the witness statement of Mr Beau Roach identifies the applicable agreement as the ASP Ship Management/ TT-Line Fleet Officers Enterprise Agreement 2021, and further identifies the ship as Spirit of Tasmania IV; and
• Clause 32.6 - Employees on Vessels Overseas provides that 'provided that an employee who is required to travel to an overseas Port to pick up a vessel for its delivery voyage shall...'

• [24] ASPSM says the Agreement does not apply to SPOT IV because:

• SPOT IV is not a 'vessel' covered under the Agreement because SPOT IV is not a 'replacement' or 'successor' vessel to SPOT I and SPOT II; and
• SPOT IV is not intended to replace the existing vessels until 2027 when it becomes operational, and it is only when the vessel becomes operational that it can be considered a 'replacement' vessel.

• [25] It was Mr Andro Besich's (Fleet HR Manager, ASP Ships Group (being a corporate group that includes ASPSM)) evidence that SPOT IV, and a second new vessel, SPOT V are proposed to replace the existing SPOT I and SPOT II fleet on the Bass Straight route between mainland Australia and Tasmania. However, this has not yet occurred and is unlikely to occur for approximately 18 more months due to issues at TT-line's existing Devonport berth.[2]

• [26] It is ASPSM's submission, supported by the evidence of Mr Besich, that when SPOT IV becomes operational, it will wholly replace SPOT I and will not operate in addition to SPOT I and SPOT II.

• [27] AIMPE says that clause 32.6 of the Agreement provides additional support to SPOT IV being a 'replacement' or 'successor' vessel.

'Provided that an employee who is required to travel to an overseas destination to pick up a vessel for its delivery voyage shall...'

• [29] The Unions say that employees asked to go on the delivery voyage are ASPSM employees drawn from the SPOT I and II crews, and that when they complete the delivery voyage, they will return to working on SPOT I and II. The Unions say there is no question that the Agreement ordinarily applies to these employees, and therefore the Agreement applies to the employees who have accepted the delivery voyage invitation. They say that clause 32.6 describes the very situation that is the subject of this dispute and that the reference to the vessel and its delivery voyage is expressly contemplated by the Agreement. The Unions also say, in the alternative, that SPOT I is caught by 'other vessel' for the purposes of the Agreement.

• [30] ASPSM did not make any substantive submissions on clause 32.6.

• [31] The Unions rely on the MOU dated 29 November 2024, between ASPSM, AIMPE and AMOU.

The purpose of this Memorandum of Understanding (MOU) is to outline the Agreement reached between the parties to this MOU with respect to the arrangements for the delivery of SPOT IV from Rauma, Finland to Leith Scotland and the warm stacking of the vessel in Scotland and its eventual delivery to Hobart, Australia. This MOU operates in addition to the terms and conditions outlined in the ASP Ship Management I TT-Line Fleet Officers Enterprise Agreement 2021 set out in Section 5 of this MOU, though the arrangements set out in this MOU will prevail to the extent of any inconsistency with the work/roster and leave arrangements set out in the ASP Ship Management I TT-Line Fleet Officers Enterprise Agreement 2021. (Emphasis added)

• [33] Clause 5 of the MOU makes specific reference to SPOT IV being covered by the Agreement, and states as follows.

The following Enterprise Agreements are the Enterprise Agreements referred to in this MOU: ASP Ship Management/ TT-Line Fleet Officers Enterprise Agreement 2021.

The above Enterprise Agreement expired in July 2024 though continues in force until replaced or cancelled. Once the above Enterprise Agreement is replaced by a new Enterprise Agreement, the new Enterprise Agreement will be applicable to this MOU in lieu of the Enterprise Agreement listed above.

Any reference in this MOU to a Clause in the Enterprise Agreement listed above will be read once the new Enterprise Agreement is finalised as a reference to the equivalent clause in the new Enterprise Agreement regardless of the Clause numbers. (Emphasis added)

• [34] The MOU deals with matters specific to the delivery of SPOT IV, including permanent crew numbers, rosters, leave, travel, preparation days, hours of work, meals, allowances, clothing and provides that disputes will be resolved in accordance with clause 11 of the Agreement.

• [35] The Unions also rely on the Seafarer's Employment Agreement, dated 5 May 2025, annexed to Mr Beau Roach's (Permanent Engineer, ASPSM) witness statement. Mr Roach is an employee of ASPSM currently onboard the delivery voyage of SPOT IV.

• [36] Mr Roach's Seafarer's Employment Agreement identifies his position as second engineer on SPOT I, SPOT II, SPOT IV and SPOT V. Further, it states that the enterprise agreement for Mr Roach's position is the ASP Ship Management/TT-Line Fleet Officers Enterprise Agreement 2021. Under the heading Terms of the Contract, it states the following;

1. The current enterprise agreement / collective bargaining agreement shall be considered to be incorporated into an to form part of this contract. Health, Compensation, Social Security protection and Repatriation entitlement shall be as per the enterprise agreement/ collective bargaining agreement. [EA/ CBA).

2. The terms and conditions of the applicable EA/CBA may vary from time to time. Terms and conditions so varied shall form part of this contract with effect from the date of the variation in place of the terms and conditions current immediately preceding the variation.

• [37] ASPSM says that the Seafarer's Employment Agreement is a pro-forma document in which the Agreement appears in all of them. However, ASPSM did not provide any evidence in support of this. ASPSM also says that whether an enterprise agreement applies or not is a matter determined by statute.

• [38] The Unions say that ASPSM always intended the Agreement to apply, and that naming the enterprise agreement is 'a requirement under the MLC, the NAV Act and marine orders.' It says that it would be an unintended consequence of ASPSM's submission if the agreement does not apply, as this would call into question the status of the Seafarer's Employment Agreement and whether or not ASPSM are acting in compliance with the Navigation Act 2012 (Cth).

• [39] In considering whether the Agreement applies to employees on SPOT IV, I first turn to the ordinary meaning of the words used in clauses 2 and 3. Clause 2 defines vessel as 'any one of the following: MV Spirit of Tasmania I, MV Spirit of Tasmania II, their replacements or any other vessel agreed between the parties pursuant to clause 3. The coverage clause at 3.1 says '...on or in connection with the Vessel defined above and any replacement or successor Vessels.

• [40] When considering the ordinary meaning of the word 'replacement', the Macquarie Dictionary defines it as 'the act of replacing', and 'something that replaces another'.[3] The word 'successor' is defined as 'something that succeeds or follows, taking their place.[4] I consider the ordinary meaning of 'replacement' and 'successor' in the context of a fleet of vessels to mean the same thing - being the act of putting something new in the place of something old. Indeed, it was Mr Besich's evidence that SPOT IV and SPOT V will replace the existing SPOT I and SPOT II fleet.

• [41] I do not accept ASPSM's submission that SPOT IV is not a replacement vessel because it is not operational until 2027. While I accept that SPOT IV will not be operational until 2027, it is the vessel that is to replace SPOT I. There is no reference in clause 3 to the requirement for the vessel to be 'operational' for it to be a replacement or successor vessel. The question of when it will replace SPOT I is not relevant to whether it will replace SPOT I.

• [42] I consider clause 32.6 provides additional context to the meaning of 'replacement' or 'successor' vessel. Clause 32.6 contemplates that a vessel may be replaced and that travel to an overseas destination to collect the vessel for its delivery voyage may be required of employees. This dispute arises from the very scenario contemplated by this clause.

• [43] I also consider it relevant that the SPOT IV employees have all come from SPOT I and II and will go back to SPOT I and II once the vessel has been delivered. There is no evidence of any other industrial arrangement being in place which governs the terms and conditions of employment applying to the ASPSM employees on the delivery voyage, except that which is contained in the Seafarer's Employment Agreement.

• [44] I consider both the signed MOU, and Mr Roach's Seafarer's Employment Agreement to be additional and relevant context in determining that the applicable industrial instrument in relation to SPOT IV is the Agreement.

• [45] Having considered the ordinary meaning of the words in clause 3, read in the context of the Agreement as a whole, and the other contextual considerations identified above, I find that SPOT IV is a vessel that is covered by the Agreement.

Question 2. Have steps 1 and 2 of the Dispute Settlement Procedure at Clause 11 of the Agreement been followed?

• [46] ASPSM submits that clause 11 - Dispute Settlement Procedure (DSP) was not followed in relation to this dispute.

• [47] Step 1 of the DSP requires employees meet with the Chief Engineer/Master or other designated Employer's representative. It was the evidence of Mr Roach that there was a meeting on board the vessel when it first arrived in Scotland, where it was explained to the crew that they could not take alcohol across the shipyard.

• [48] Further, it was the uncontested evidence of Mr Sean Francis (Permanent Engineer, ASPSM) that the ban on the consumption of alcohol on SPOT IV was a dispute that could not be resolved at the shipboard level, and that the delegates referred the matter to AIMPE who then raised it with ASPSM.

• [49] The Unions says that Step 2 was followed and that they raised the matter with ASPSM on 5 May 2025.[5] It says that discussions were had with ASPSM about this matter, along with an additional matter in dispute, with that matter being resolved at that time. At the Hearing, ASPSM did not refute the Unions' submission on whether Steps 1 and 2 had been complied with.

• [50] It is well established that in dealing with arguments about whether a disputes procedure has been followed, a purposive approach should be taken. In Maersk Crewing Australia Pty Ltd v Construction, Forestry, Mining, Maritime, Mining and Energy Union (No 2) (Maersk) Colvin J said at [86]:

The terms of a procedure for resolving disputes should not themselves be construed in a manner that turns them into an instrument for generating disputes as to whether the procedure itself has been followed. Such provisions must be construed having regard to their evident purpose as providing a mechanism by which to encourage discussion and resolution. They should be interpreted 'practically and with an eye to common sense' having regard to the context in which they will be applied so that they can be implemented 'in a clear way on a day-to-day basis at work sites', as seen in decisions such as Ramsay v Menso [2018] FCAFC 55; (2018) 260 FCR 506 at [39] (Dowsett and Collier JJ), applying Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; (2017) 251 FCR 470 at [15]. See also, Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); and City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57] (French J).

• [51] I am satisfied that Steps 1 and 2 of the DSP were followed.

Question 3. Is the imposition of a ban on alcohol onboard the Spirit of Tasmania IV inconsistent with clause 60 of the Agreement?

• [52] It is uncontested that TT-line is a client of ASPSM, and that it has a drug and alcohol policy that ASPSM employees covered by the Agreement must comply with.

• [53] TT-line's drug and alcohol policy is called 'Alcohol and Other Drugs' (TTL-POL-601). It was issued on 15 December 2013 and last reviewed in March 2018. It is a Board approved policy, with the policy owner being the General Manager - Marine Operations.

• [54] TT-line also has a separate procedure document titled 'Managing the Consumption of Alcohol and Other Drugs', document PRO 5.21, Revision 1, issued on 18 November 2024. This procedure document refers to TTL-POL-601 and is a related document.

• [55] ASPSM says that clause 60.1 of the Agreement does not provide a right to consume alcohol, nor does it require employees be permitted to drink alcohol. It says that clause 60 is a permissive clause which sets out the framework for the consumption of alcohol in circumstances where it is permitted, which in this case, it is not. However, it also says that while clause 60 presupposes a state of affairs in which alcohol may be consumed, it does not regulate TT-line policies or decisions.

• [56] ASPSM says that clause 60.6 requires, as condition of employment, that all ASPSM employees are subject to any 'client drug and alcohol policy'. ASPSM do not contest that TT-line's written drug and alcohol policy applies. However, it says that the SPOT IV being a dry vessel is a blanket, and unwritten, policy that also applies.

• [57] ASPSM submitted a letter from Mr Besich to the Unions, dated 5 August 2024, stating that TT-line had notified ASPSM that SPOT IV will be a dry vessel for all officers and crew. It also states that it is anticipated that SPOT IV will arrive in November 2024, and that the same rule will apply to SPOT V when it arrives in 2025. The letter then seeks to confirm that a meeting is scheduled for 12 August 2024 to discuss and consult about the change. It is uncontested that consultation did commence but was subsequently paused.

• [58] On 24 January 2025, there is an email from Mr Richard Hall (General Manager Marine Operations, Spirit of Tasmania), to Mr Besich wanting to 'reaffirm that TT-Line will require both vessels (being SPOT IV and SPOT V) to be 'dry' for all vessel activities including mobilisation, lay-up and eventual entry into normal service...We understand that you commenced a consultation process some time ago with the relevant unions - can you provide an update.'

• [59] On 7 August 2025, Mr Nathan Niven (Senior National Organiser, AIMPE) wrote to Mr Besich requesting a copy of the correspondence from TT-line about their reasons for the dry ship decision. That same day, Mr Besich emailed Mr Mark Stanton, (General Manager, Human Resources, Spirit of Tasmania) stating 'As I am not aware of any written communication between TT-Line and ASP[SM], are you able to provide requested information?' Mr Stanton replied 'our reason for not having crew bars on the new ships are based on safety - for our employees and being a passenger ship, community safety is critical for TT-line.'

• [60] It is clear from the evidence that there has been some discussion about SPOT IV being a dry vessel, however the question is whether that is the policy of TT-Line. The Unions submit that TT-line's drug and alcohol policy is the written policy documents described at paragraph [53] and [54] above, and only that. ASPSM says that the emails are evidence of an 'unwritten policy' in that requires SPOT IV to be a dry vessel.

• [61] The Unions say that emails from managers do not constitute or form policy. It says that TT-line's Policy Standard Policy (TTL-POL-101), requires that all policies must be in writing. TTL-POL-101 was issued April 2013 and was last reviewed in August 2015. It is a Board approved policy, with the Policy owner being the General Manager, Human Resources,

• [62] The relevant provisions of TTL-POL-101 for the purposes of this dispute are set out as follows:

• Section 4.5 Policy Management states that 'any revision of a policy that requires approval of the Board and that, in the opinion of the CEO has a material change will be referred to the Board via the Audit committee for approval. Any revision of any policy must be approved by the CEO. All policies that require Board approval will be submitted to the Audit Committee for review and recommendation to the Board.'

• Section 4.6 Development states that 'policy development must comply with the 'Policy Content Development and Review Guide' (Appendix B).

• Section 4.6 (c) says 'policies will be written to avoid ambiguity'.

• Section 4.7 Approval states that 'policies must be approved before they can be issued for use. Unapproved policies cannot be considered to be reflective of the organisations intent. Policies are considered to be unapproved unless they have been subject to the approval process. Policy will be approved in writing by the CEO or the Board, as appropriate and as identified in the Policy Review Schedule. A copy of the written approval must be provided to and retained by the Risk and Resilience Coordinator.

• Section 4.8 Publication states that 'a policy will not be published unless the policy author can provide a written approval as per section 4.7. Once published to the intranet, the intranet version will become the controlled copy.'

• Appendix A of the Policy Standard states that 'Draft Policy means a written document (that is intended to become policy) that has not yet been approved. Draft polices have no legal relevance or authority and must not be relied upon or observed in any way.'

• Appendix D of the Policy Standard states that 'policies will not be approved and published unless they comply with this Standard.

• [63] I am not persuaded that under clause 60.1, employees do not have a right to consume alcohol, as I consider the right to consume alcohol, for an adult, already exists. It would be somewhat challenging for an enterprise agreement to expressly outline every legal permissibility. The absence of words in the Agreement that describe an adult's legal right to consume alcohol does not render the consumption of alcohol impermissible. Instead, what clause 60 does, is impose obligations and duties which temper and constrain that which is ordinarily permissible of adults to legally consume alcohol.

• [64] TTL-POL-601 does not expressly prohibit the consumption of alcohol except in relation to a Master, Officer or any other crew member whilst on duty or watch. Where a Master, Officer or any other crew member is on board but not on duty, or off duty at layover, TTL-POL-601 provides that blood alcohol content shall not exceed 0.05 grams, or 0.08 grams respectively. I consider that clause 4.1 of TTL-POL-601 contemplates the consumption of alcohol, and places restrictions on that consumption by way of setting acceptable limits on blood alcohol content. The policy does not go so far as to impose a blanket ban on the consumption of alcohol.

• [65] ASPSM did not contest that TTL-POL-101 is the policy of TT-line. However, it says that the communications of 5 August 2024, 7 August 2024 and 24 January 2025 (where ASPSM notified the Unions that SPOT IV would be a dry vessel) is an unwritten policy which overrides the written policy. I am not persuaded this is so.

• [66] Firstly, TTL-POL-101 sets requirements on the organisation in how it manages its policies. Appendix D of TTL-POL-101 makes it clear that a policy is not a policy unless it is of the form and substance required by the Standard.

• [67] Secondly, I consider that the email of Mr Hall dated 7 January 2025, where he states that both SPOT IV and V will be dry vessels, is not sufficient evidence, and does not establish that TT-line has a policy which bans the consumption of alcohol on SPOT IV. I am further persuaded this is so because of the timing of Mr Hall's email which was some months prior to TTL-POL-601 being reviewed and endorsed by the Board. If ASPSM wanted SPOT IV and V to be dry vessels, as a matter of policy, then Mr Hall, as the policy owner, and TT-line could have amended TTL-POL-601 accordingly. They did not.

• [68] Given the rigorous policy standard in TTL-POL-101, I do not consider that the email of Mr Hall can be said to rise to the status of a TT-line policy. Additionally, it contradicts section 4.6(c) of TTL-POL-101 which clearly states that all policies must be in writing to avoid ambiguity.

• [69] I do not accept that TT-line has a policy prohibiting the crew of SPOT IV from consuming alcohol, or that there is an unwritten policy which applies to SPOT IV employees.

• [70] I find that TTL-POL-601 is TT-line's drug and alcohol policy.
• [71] I consider the ban on alcohol onboard SPOT IV to be inconsistent with clause 60 of the Agreement.

[1] [2020] FCAFC 123; (2020) 278 FCR 566 [65] and the authorities cited therein.

[2] Witness Statement of Mr Andro Besich at [14], page 191 DHB.

[3] Macquarie Dictionary (online at 6 January 2026) 'replacement'.

[4] Macquarie Dictionary (online at 6 January 2026) 'successor'.

[5] Witness Statement of Sean Francis at [24], page 135 DHB.

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