The Fair Work Commission (FWC) has found the Maritime Union of Australia (MUA) can represent the industrial interests of one team of workers on the Gorgon LNG project on Barrow Island, but not two others, writes AREEA principal adviser – workplace policy, Lisa Matthews.

The Fair Work Commission (FWC) has found the Maritime Union of Australia (MUA) can represent the industrial interests of one team of workers on the Gorgon LNG project on Barrow Island, but not two others, writes AREEA principal adviser – workplace policy, Lisa Matthews.

IN his 25 October 2016 decision, Commissioner Danny Cloghan responded to an MUA claim for entry to hold discussions with three groups of workers.

Commissioner Cloghan said that to be satisfied the union was entitled to represent the industrial interests of the relevant employees, he would have to find they were following the occupation of “waterside worker”.

KJV was the first respondent to the application but was not directly involved in the dispute, which involved Toll Energy Logistics Pty Ltd as the employer of the relevant employees.

Commissioner Cloghan cited earlier case law that said the determining factor of whether a union’s eligibility rules applied was not employees’ job titles but the duties they undertook.

Duties of a waterside worker

In the previous case law, one finds recognition that the function of loading and unloading ships lies at the heart of the occupation of a waterside worker, Commissioner Cloghan said.

A waterside worker continues to perform, with the appropriate modern tools of trade, at or in the vicinity of a wharf the essential functions involved in the operation of loading and unloading ships.

There were three teams of workers subject to the MUA’s application, with the union submitting they were all “waterside workers”:

• The Off Loading Facility (OLF) team;
• The Shore Base (SB) team; and
• The Logistical Operations (LO) team.

The OLF team

Toll argued most of the OLF team were not waterside workers and with the exception of crane operators, members of the team spent no more than 30% to 35% of their working time at the materials offloading facility (MOF) with the remainder spent at other locations.

Commissioner Cloghan said while the employer might have had the intention of having a flexible workforce capable of performing a variety of skills across multiple locations on Barrow Island, the evidence demonstrated there was limited movement of some employees, particularly those in the OLF team.

In support of its application, the MUA highlighted:

• The “principal purpose” of the OLF team was to load and unload vessels;
• The “work” of the employees was to load and unload vessels;
• The employees spent at least 50% of their work time loading and unloading vessels;
• The work was carried out at what could generally be defined as a wharf; and
• The employees were trained, qualified and experienced to undertake tasks associated with the loading and unloading of vessels.

Commissioner Cloghan said on the evidence he was satisfied the OLF team was comprised of employees engaged in the occupation of “waterside worker”.

However, he noted the MUA also wanted the commission to reach the same conclusion for the SB and LO teams.

The SB team

According to the evidence, the SB team had the following functions:

• Reverse logistics – ie the collection of material no longer required on Barrow Island;
• Quarantine checks;
• Collecting waste (including food waste); and
• Delivering waste to various locations on the island.

Commissioner Cloghan said based on the evidence, the SB team’s primary functions were to collect freight to be dispatched off the island, prepare freight so it could be picked up by drivers and, where necessary, delivered to the materials offloading facility (MOF) landing.

“Separately, it has a function of making a quarantine inspection of vessels, when required,” Commissioner Cloghan said.

“The primary purpose of the SB team is not to load and unload vessels. It is not located near the wharf. While the employees of the SB team are rotated to the MOF, that rotation is unconnected with the substantive reason of their ‘team’ or employment.”

Commissioner Cloghan was therefore unable to find the employees in the SB team were waterside workers by occupation.

The LO team

The LO team’s dominant responsibilities concerned the collection and delivery of air freight, logistics support to the accommodation camps, procurement and yard work at the Old Airport.

The principal purpose of the LO team was not to load and unload vessels and the LO team was not located at the wharf, the commissioner noted.

However, the LO team members did spend time at the MOF, currently 30% of work time.

“In view of the primary purpose of the LO team, it could not reasonably be said that the loading or unloading of vessels is work incidental, or related, to the LO team’s primary purpose,” the commissioner said.

For those reasons, LO employees were not in the occupation of “waterside worker”.

“Put simply, I am not prepared to ‘roll up’ the work of the SB and LO teams into a group of employees involved in the loading and unloading of vessels at the MOF or WAPET landing,” he said.

“The parameters relating to waterside workers considered in the case law are not comparable to the SB and LO teams.”

“In my view it is not in dispute that the principal or substantive function of the OLF team is to load and unload cargo into or off vessels. These functions lie at the heart of a waterside worker.”

The MUA was therefore entitled to represent the OLF team’s industrial interests and meet with them under s484 of the Fair Work Act, he said.

Click here for the decision.

Implications for employers

This decision confirms that in deciding whether employees are classified as “waterside workers” such that the MUA is entitled to represent their industrial interests, the FWC will look at whether their dominant purpose of employment is the loading and unloading of vessels in the vicinity of a wharf.

To discuss the implications of this decision or for advice with a related workplace relations matter, please contact an AREEA consultant at your closest AREEA office.