Fair Work Ombudsman v Pocomwell Limited (No 2) [2013] FCA 1139

Fair Work Ombudsman v Pocomwell Limited (No 2) [2013] FCA 1139

The Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth) could, on proper construction, extend to drilling rigs in the EEZ if they qualified as fixed platforms or majority Australian-crewed ships. However, neither drilling rig was a fixed platform nor a majority Australian-crewed ship at material times; thus, the Fair Work Act does not apply. Application is dismissed.

Parties
Applicant: Fair Work Ombudsman; First Respondent: Pocomwell Limited; Second Respondent: Supply Oilfield and Marine Services Inc; Third Respondent: Survey Spec Pty Ltd; Fourth Respondent: Thomas Civiello
Jurisdiction
Australia
Judgment Date
01 November 2013
Procedural Posture
Civil Enforcement Action / Judgment and Orders
Outcome
Application dismissed
Legal Topics
Application of Fair Work Act 2009 (cth) in Exclusive Economic Zone, Construction of 'fixed Platforms' and 'majority Australian Crewed Ships', International Law Issues in Extraterritorial Operation of Australian Statute, Award Coverage for Foreign Employers, Accessorial Liability for Wage Underpayments
Industrial Law Employment Law Application of Fair Work Act 2009 (cth) in Exclusive Economic Zone Construction of 'fixed Platforms' and 'majority Australian Crewed Ships' International Law Issues in Extraterritorial Operation of Australian Statute Award Coverage for Foreign Employers Accessorial Liability for Wage Underpayments

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Parties

Fair Work Ombudsman

Applicant

Pocomwell Limited

First Respondent

Supply Oilfield and Marine Services Inc

Second Respondent

Survey Spec Pty Ltd

Third Respondent

Thomas Civiello

Fourth Respondent

Procedural Posture

Civil Enforcement Action / Judgment and Orders

Legal Issues

  1. 1 Whether the Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth) apply to foreign nationals employed on drilling rigs in Australia's EEZ
  2. 2 Whether s 33(1)(b) Fair Work Act 2009 (Cth) should be read down by international law
  3. 3 Whether reg 1.15E Fair Work Regulations 2009 (Cth) is ultra vires or should be read down

Ratio Decidendi

The Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth) could, on proper construction, extend to drilling rigs in the EEZ if they qualified as fixed platforms or majority Australian-crewed ships. However, neither drilling rig was a fixed platform nor a majority Australian-crewed ship at material times; thus, the Fair Work Act does not apply. Application is dismissed.

Court Disposition

Application dismissed

Orders

  • The application be dismissed.
  • Any application for costs: respondents to file and serve written submissions within 21 days, applicant to respond within 21 days; Court to determine costs on the papers unless either party seeks oral hearing.