Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2) [2020] FCA 1138

Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (MV Portland Case) (No 2) [2020] FCA 1138

Clause 4 of the 2012 Agreement limited coverage to employees working on specified ASP-manned or operated vessels while those vessels continued to operate in their usual trade, not merely while they remained within ASP's business. The MV Portland had ceased to operate in that trade by 13 November 2015, so the 2012 Agreement ceased to cover the second to tenth respondents from that date. The fact that the agreement described their jobs as ratings did not itself maintain coverage because s 53(6) does not override the agreement's coverage limitations.

Jurisdiction
Australia
Judgment Date
07 August 2020
Procedural Posture
Industrial Law Proceeding Alleging Contraventions of S 417 of the Fair Work Act 2009 (cth) / Determination of Separate Questions Pursuant to R 30.01 of the Federal Court Rules 2011
Outcome
Separate question (a) answered yes; separate question (b) answered yes; separate question (c) was not pressed and was vacated. Consequential disposition was deferred for proposed orders or relisting.
Legal Topics
['enterprise Agreement Coverage' 'industrial Action' 'construction of Enterprise Agreements' 'separate Questions' 'fair Work Act 2009 (cth) S 417' 'fair Work Act 2009 (cth) S 53']
['industrial Law' 'employment and Industrial Relations'] ['enterprise Agreement Coverage' 'industrial Action' 'construction of Enterprise Agreements' 'separate Questions' 'fair Work Act 2009 (cth) S 417' 'fair Work Act 2009 (cth) S 53']

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Procedural Posture

Industrial Law Proceeding Alleging Contraventions of S 417 of the Fair Work Act 2009 (cth) / Determination of Separate Questions Pursuant to R 30.01 of the Federal Court Rules 2011

Legal Issues

  1. 1 ['Whether, on or by 13 November 2015, the MV Portland had ceased to "operate in the trade" within the meaning of clause 4 of the ASP Ship Management Pty Ltd Seagoing Ratings Enterprise Agreement 2012.' 'If the MV Portland had ceased to operate in the trade, whether from 13 November 2015 the 2012 Agreement ceased to cover the second to tenth respondents.' 'Whether employees whose job title or description was described by an enterprise agreement remained covered by that agreement notwithstanding limitations in its application clause.']

Ratio Decidendi

Clause 4 of the 2012 Agreement limited coverage to employees working on specified ASP-manned or operated vessels while those vessels continued to operate in their usual trade, not merely while they remained within ASP's business. The MV Portland had ceased to operate in that trade by 13 November 2015, so the 2012 Agreement ceased to cover the second to tenth respondents from that date. The fact that the agreement described their jobs as ratings did not itself maintain coverage because s 53(6) does not override the agreement's coverage limitations.

Court Disposition

Separate question (a) answered yes; separate question (b) answered yes; separate question (c) was not pressed and was vacated. Consequential disposition was deferred for proposed orders or relisting.

Orders

  • ["The parties bring in minutes of proposed orders or seek a relisting of the proceeding in accordance with the observations made at [77] of the Court's reasons for judgment."]