2025 WAIRC 00349
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA
CITATION
:
2025 WAIRC 00349



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
WEDNESDAY, 30 APRIL 2025



DELIVERED
:
FRIDAY, 13 JUNE 2025



FILE NO.
:
M 94 OF 2024



BETWEEN
:
CONSTRUCTION, FORESTRY AND MARITIME EMPLOYEES UNION


CLAIMANT





AND





OSM AUSTRALIA PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – Construction of a clause of an enterprise agreement –– Casual conversion under cl 12.5 of OSM Australia Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023 – Timing of expressions of interest and offers of permanent employment – Meaning of fill permanent position – Timing of the commencement of permanent position
Legislation : Fair Work Act 2009 (Cth)
Instrument : OSM Australia Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023
Case(s) referred
to in reasons: : City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426
Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54
Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182
Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241
Mildren v Gabbusch [2014] SAIRC 15
Miller v Minister of Pensions [1947] 2 All ER 372, 374
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638
Result : Claim proven in part
Representation:
Claimant : Ms S. Sayed (of counsel)
Respondent : Mr S. Rogers (of counsel)



REASONS FOR DECISION
Introduction
1 On 8 July 2024, the Construction, Forestry and Maritime Employees Union (the claimant) lodged a claim alleging OSM Australia Pty Ltd (the respondent) failed to give five casual Integrated Rating (IR) positions offers to convert to permanent employment by 19 January 2024 and failed to fill the positions by 26 January 2024 in compliance with cl 12.5(a) and cl 12.5(b) of the OSM Australia Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023 (the OSM Agreement) (the Claim).
2 In failing to give the offers to convert to permanent employment and failing to fill the positions, the claimant alleges that the respondent has contravened s 50 of the Fair Work Act 2009 (Cth) (FWA) in that the respondent has breached cl 12.5(a) and cl 12.5(b) of the OSM Agreement.
3 The claimant claims the payment of a civil penalty for the alleged contravention and for the penalty to be paid to the claimant pursuant to s 546(1) and s 546(3) of the FWA.
4 On 9 December 2024, the claimant lodged further and better particulars to the Claim specifying the five casual IR employees who had expressed an interest in permanency and the timeline of communication between the respondent’s employees, the respondent and representatives of the claimant.
5 The respondent denies the alleged contravention and says the controversy between the parties involves interpreting the relevant clause in the OSM Agreement. However, the respondent admitted some of the particulars contained in the claimant’s further and better particulars of claim.
6 Schedule I of these reasons outlines the jurisdiction, standard of proof and practice and procedure of the Industrial Magistrates Court (IMC).
7 Schedule II of these reasons outlines the principles applicable to the construction of an industrial agreement.
Agreed Facts
8 The parties provided a statement of agreed facts Exhibit 1 – Statement of Agreed Facts.
.
9 In summary, the claimant has standing to commence the Claim, and the respondent is a national system employer under the FWA. The Fair Work Commission approved the OSM Agreement on 15 December 2023, and it came into operation on 22 December 2023 with a nominal expiry date of 1 August 2027. The OSM Agreement applies to employees employed by the respondent in any of the classifications contained in the OSM Agreement Clause 4.1 of the OSM Agreement.
.
10 The respondent received expressions of interest from (amongst others): Richard Badger on 1 January 2024; Rewi Whaitiri on 20 December 2023; Mitchell Keighran on 11 January 2024; and Matthew Duguid on 12 January 2024.
11 On 19 February 2024, the respondent made offers of permanent employment to Richard Badger, Rewi Whaitiri, Mitchell Keighran and Matthew Duguid.
12 The offers of permanent employment were accepted by: Richard Badger on 21 February 2024; Rewi Whaitiri on 27 February 2024; Mitchell Keighran on 22 February 2024; and Matthew Duguid on 19 February 2024.
13 Richard Badger commenced as a permanent employee on 28 February 2024, Rewi Whaitiri commenced as a permanent employee on 20 March 2024, Mitchell Keighran commenced as a permanent employee on 13 March 2024, and Matthew Duguid commenced as a permanent employee on 13 March 2024.
Other Evidence
Claimant’s evidence
14 George Gakis (Mr Gakis), Trade Union Official of the Maritime Union of Australia Division of the claimant, states in a witness statement signed on 19 February 2025 Exhibit 2 – Witness Statement of George Gakis signed on 19 February 2025.
that he was involved in the bargaining negotiations for the OSM Agreement.
15 Mr Gakis states that in meetings with the respondent, it was discussed and agreed that within four weeks of registration of the OSM Agreement, the respondent would call for expressions of interest for permanency and provide offers of permanent employment to five IRs. Mr Gakis further stated that on 15 November 2023, the respondent confirmed this position in an explanatory memorandum provided to the employees Exhibit 2 at [3] and attachment GG-01.
.
16 On or around 20 December 2023, Mr Gakis states he became aware that most of the casual IRs had not received the respondent’s email calling for expressions of interest for permanent employment. He was informed by members that the respondent had not made a ‘call for expressions of interest for permanency, but rather, it was a cumbersome process that required’ a number of documents, including: covering letter detailing an interest in permanency; updated resume; and other documents including qualifications Exhibit 2 at [5] and attachment GG-02.
.
17 On 20 December 2023, Mr Gakis emailed Ilana Jewson (Ms Jewson), Employee Operations Manager for the respondent, raising the members’ concerns about the application process Exhibit 2 at [6] and attachment GG-03.
. On 22 December 2023, Ms Jewson responded to his email informing him that five people had come forward and applied for permanency Exhibit 2 at [7] and attachment GG-03.
.
18 In cross-examination, Mr Gakis confirmed he was involved in the bargaining of the OSM Agreement but did not recall the conversations with Warren Harrower (Mr Harrower), the respondent’s Employee Relations Manager, concerning client issues. He said the respondent did not require client approval.
19 Jeffry Badger (Mr Badger), IR employed by the respondent, states that on or around 15 November 2023 he received an explanation sheet from the respondent about the OSM Agreement Exhibit 3 – Witness Statement of Jeffry Badger signed on 18 February 2025 at [4] and attachment JB-01.
.
20 Mr Badger states he did not receive any correspondence from the respondent about expressions of interest for permanency. However, on 20 December 2023, he emailed Ilana Jewson expressing an interest in permanent employment. On 12 February 2024, Mr Badger received an email from Ms Jewson informing him that he had been approved for a permanent position, and that ‘Sherry’ would be in touch with his new contract and confirmation offer Exhibit 3 at [6] and attachment JB-02.
.
21 On 29 February 2024, Mr Badger received a copy of a contract of employment Exhibit 3 at attachment JB-03.
. Notably, in an email from Sherry Hernandez Refamonte, Crewing Manager, to Mr Badger on the same day, Mr Badger is informed ‘[h]owever, duty day being perm will start on the first duty day after this swing’ Exhibit 3 at JB-03.
.
22 Notwithstanding that Mr Badger states he commenced permanent employment on 9 April 2024 Exhibit 3 at [8].
, what he does not state in his witness statement is that he did not sign the contract of employment until 9 April 2024 Exhibit 4 – signed contract of employment of Jeffry Badger.
. He acknowledged this in cross-examination along with acknowledging that his first duty day at the end of the ‘swing’ was 9 April 2024 Transcript, p 28 – 29.
.
Respondent’s evidence
23 Warren Harrower, the respondent’s Employee Relations Manager, states he was involved in the negotiation of the OSM Agreement with the claimant, including Mr Gakis Exhibit 5 - Witness Statement of Warren Harrower signed on 28 March 2025.
.
24 Mr Harrower goes into some detail concerning the respondent’s business. I do not intend to recount all of this evidence. In summary, the respondent’s business is subservient to their clients’ needs, including the number of permanent and casual employees it can employ Exhibit 5 at [13] and [14].
.
25 As a crewing agent, the respondent’s business model is similar to other businesses in the offshore oil and gas industry Exhibit 5 at [15] and [16].
.
26 Mr Harrower outlines in detail conversations he had with Mr Gakis, and other representatives of the claimant during the bargaining process for the OSM Agreement, about the respondent’s business model and the need for client approval and the costs associated with this, including ‘manning’ levels. Mr Harrower says that manning levels were a source of dispute between the respondent and the claimant over last five years Exhibit 5 at [17] to [23].
.
27 Mr Harrower states that negotiations for the OSM Agreement started in November 2022 and was agreed in principle on 20 October 2023. Mr Harrower said he had several telephone conversations with Mr Gakis about the OSM Agreement, including how the proposed words in cl 12 would work, where the respondent was beholden to its clients’ approval Exhibit 5 at [28] to [30].
.
28 Mr Harrower states cl 12.5 was inserted into the OSM Agreement at the insistence of the claimant to increase the number of permanent employees. Mr Harrower says he discussed the implementation of cl 12.5 with the claimant because he was aware there were practical constraints to the clause. Mr Harrower states that in a telephone conversation with Mr Gakis, he discussed the operation of cl 12.5(a) and asked Mr Gakis what needed to happen in the four - week period after registration, to which Mr Gakis said the intent was to advertise for expressions of interest within that period Exhibit 5 at [35] and [36].
.
29 Mr Harrower states he then asked Mr Gakis about cl 12.5(b) and what the claimant understood about the obligation imposed on the respondent within those seven days, to which Mr Gakis responded that once an employee returned a signed permanent contract of employment then permanent employment should be implemented within seven days of receipt Exhibit 5 at [37] and [38].
.
30 Mr Harrower understood from the conversation that it was common ground between the parties that it would take some time for the respondent to undertake assessments following receipt of expressions of interest for permanency and to obtain client approval. He thought that he and Mr Gakis were aligned in terms of the timing of the process, including that the permanent employment would commence seven days from when a returned signed contract of employment was received Exhibit 5 at [40] to [44].
.
31 To Mr Harrower, it made logical sense that only the expressions of interest could be undertaken within the four - week period, and the remaining process would take longer. He understood that Mr Gakis was aware of this and the reasons for it Exhibit 5 at [50] to [54].
.
32 Mr Harrower was informed by the respondent’s crewing manager that Mr Badger was offered permanent employment on 29 February 2024, but did not accept the offer because he disputed the terms of his contract. The terms were worked through and Mr Badger accepted the offer on 9 April 2024, commencing permanent employment on the same day Exhibit 5 at [57] and [58].
.
33 Mr Harrower maintained he had a conversation with Mr Gakis regarding the need for client approval and that this was part of the bargaining process. He agreed the OSM Agreement did not contain a clause requiring client approval before converting a casual employee to a permanent employee. He agreed an employee start date could theoretically occur prior to a swing start date but typically this did not happen.
34 Ms Jewson, the respondent’s Employee Operations Manager, is responsible for the management of the respondent’s crewing operations team, dealing with union officials and day-to-day management of employees on vessels Exhibit 6 – Witness Statement of Ilana Jewson signed on 19 March 2025.
.
35 Ms Jewson states that the employees’ on and off duty periods are considered one period of employment, and in her experience, employees have never changed their terms and conditions mid-swing, which she says is well known by the claimant Exhibit 6 at [12] and [13].
.
36 Ms Jewson also states that employees were consulted about when their permanent employment would start and how they wanted to manage any casual employment entitlements in the interim. She says it was only possible for employees to commence permanent employment at the start of the swing after they accepted their offer of permanent employment Exhibit 6 at [14] and [15].
.
37 On 19 December 2023, Ms Jewson authorised an email to be sent to the IRs on behalf of the respondent via the respondent’s eCrew system calling for expressions of interest for permanency Exhibit 6 at [16] to [19] and attachment IJ-X1.
.
38 It has never been reported to her that there were problems with employees receiving communications via eCrew and eCrew is the method the respondent uses to communicate directly with employees Exhibit 6 at [20] to [25].
.
39 On 20 December 2023, Ms Jewson received an email from Mr Gakis advising that preference should be given to the longest serving employees where the number of applications exceeded the five offers. Mr Gakis did not raise any concern with the timing of offers Exhibit 6 at [26] and attachment IJ-X2.
.
40 On 22 December 2023, Ms Jewson replied to Mr Gakis and informed him five employees had expressed interests at that time Exhibit 6 at [29] and attachment IJ-X3.
.
41 Ms Jewson did not receive any further correspondence from Mr Gakis before going on annual leave on 22 December 2023 and returning from leave on 2 January 2024.
42 Ms Jewson provides an example of one of the employees, Mitch Keighran (Mr Keighran), being on leave from 6 December 2023 to 10 January 2024, and she states Mr Keighran submitted his expression of interest on 11 January 2024 which was four days before the cut-off date of 15 January 2024 Exhibit 6 at [31] and [32].
.
43 The respondent received nine expressions of interest for permanency which necessitated an assessment process part of which involved input by the respondent’s clients. The assessment process took 21 working days to fully assess the applicants, from which five were chosen Exhibit 6 at [35] to [47].
.
44 The respondent made five offers of permanency Exhibit 6 at [50].
:
· Jeffry Badger on 29 February 2024
· Richard Badger on 19 February 2024
· Matthew Duguid on 19 February 2024
· Mitch Keighran on 19 February 2024
· Rewi Whatiri on 27 February 2024
45 The offers were accepted by Exhibit 6 at [51].
:
· Jeffry Badger on 9 April 2024
· Richard Badger on 21 February 2024
· Matthew Duguid on 19 February 2024
· Mitch Keighran on 22 February 2024
· Rewi Whatiri on 27 February 2024
46 Ms Jewson states Jeffry Badger did not sign an offer of permanency until 9 April 2024 because he disputed the terms of his employment contract Exhibit 6 at [52].
.
47 The IRs who were offered permanency commenced their permanent employment after being on leave and returning to their vessel on the following dates Exhibit 6 at 53].
:
· Jeffry Badger on 9 April 2024
· Richard Badger on 28 February 2024
· Matthew Duguid on 13 March 2024
· Mitch Keighran on 13 March 2024
· Rewi Whatiri on 20 March 2024.
48 Ms Jewson states the above dates were the first date of their return to work following their off - duty period, which she says was within seven days Exhibit 6 at [53].
.
49 I accept the witnesses evidence, subject to one proviso being the alleged discussions between Mr Harrower and Mr Gakis. I also note Mr Badger was not forthcoming about all of the facts surrounding the signing of his contract of employment, however, he made appropriate concessions in cross-examination.
50 I prefer the evidence of Mr Harrower about his conversations with Mr Gakis, whose curt denial of the conversations failed to impress where he was involved in the bargaining process representing the claimant. Mr Harrower’s recollection of the nature of the conversations with Mr Gakis was detailed and consistent with the lack of detail concerning the operation of cl 12.5 of the OSM Agreement (which will be explained below). Given the relevance to the respondent’s business, the nature of Mr Harrower’s conversations were credible, notwithstanding he made no notes of his conversations with Mr Gakis.
The Parties’ Contentions
51 The principles applicable to the interpretation of industrial agreements are well known. In summary, the interpretation of an industrial instrument begins with consideration of the natural and ordinary meaning of the words used City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426, 438 (City of Wanneroo).
. An industrial instrument is to be interpreted in light of its industrial context and purpose and must not be interpreted in a vacuum divorced from industrial realities City of Wanneroo 438, 440.
. An industrial agreement must make sense according to the basic conventions of the English language City of Wanneroo 440.
. The circumstances of the origin and use of a clause is relevant to an understanding of what is likely to have been intended by its use Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; (2014) 318 ALR 54.
. Narrow and pedantic approaches to the interpretation of an industrial agreement are misplaced Kucks v CSR Ltd [1996] IRCA 166; (1996) 66 IR 182; Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241.
.
The claimant’s submissions
52 The claimant says the requirement for the respondent to comply with cl 12.5(a) and (b) of the OSM Agreement is unambiguous, easily understood and needs no additional words to its meaning.
53 The respondent’s obligation was to call for expressions of interest and where there were enough applicants, to provide offers of permanency within four weeks. Thereafter, the respondent was required to fill positions within seven days, which according to the Claim was by 26 January 2024.
54 In reply to the respondent’s oral submissions, as I understood it, the claimant’s position is not that the employee is to be on a vessel within seven days, but the permanent position is to be filled within seven days. That is, it is the employment relationship that is important, not where the employee is located.
The respondent’s submissions
55 In summary, the respondent contends that its obligation was to call for expressions of interest within four weeks of the registration of the OSM Agreement. Thereafter, it was not intended the completion of the process occur within four weeks where the respondent was constrained under its business model, and it was required to undertake an assessment process if more than five applicants expressed interest in permanent employment.
56 Further, it was not open to the respondent to fill any permanent position until after an applicant accepted any offer of permanency by way of a written contract of employment.
57 The respondent suggests the timing of these steps is the issue in dispute between the parties. The respondent’s submissions will be discussed in more detail below.
What is the Preferred Construction of Clause 12.5(a) and (b)?
Clause 12.5 of the OSM Agreement
58 Clause 12.5 of the OSM Agreement provides:
(a) The Employer will call for expressions of interest for permanent positions and where there are enough applicants, will provide 5 casual IRs with offers to convert to Permanent Employment, within 4 weeks of registration of this Agreement.
(b) The Position will be filled within 7 days, where the applicants return confirmation of permanent employment.
(c) Where less than the 5 casual IR’s express interest in the 5 permanent positions in accordance with 12.5(a), the Employer is only obliged to make offers to those employees and not 5 offers.
(d) At the time of making of this EA, there were a total of 5 permanent IRs covered by this EA.
59 Clause 12.6 of the OSM Agreement provides:
(a) Where the number of Employees expressing an interest in a permanent position exceeds the number of positions available, preference will be given to those with the longest service.
60 Clause 12.7 of the OSM Agreement provides:
(a) When a Permanent Employee vacates their permanent position for any reason other than redundancy, the Employer will call for an expression interest with offers to fill the vacated permanent position within 28 days, by a Casual Employee.
(b) The position will be filled within 7 days, where the applicants return confirmation of permanent employment.
(c) Nothing in this clause requires a Casual Employee to convert to permanent employment.
61 Clause 3.1 of the OSM Agreement defines ‘Permanent Employee’ to mean ‘an Employee that is employed as a Full-Time under clause 12 of [the OSM] Agreement’.
62 Clause 12.2(a) of the OSM Agreement provides for two types of employees, Full-Time Employees and Casual Employees. Under cl 12.2(b) of the OSM Agreement, prior to the commencement of employment, the respondent is to provide to the employee a written offer of employment which contains at least the type and, for a Casual Employee, the term of the employment.
63 Clause 12.3 of the OSM Agreement sets out the payment terms for a Casual Employee.
64 Clause 12.4 of the OSM Agreement provides a mechanism for the conversion of a Casual Employee to a Permanent Employee where the Casual Employee works regularly for three consecutive swing cycles in the prior 12 - month period.
65 Clause 12.8 of the OSM Agreement outlines the terms of engagement for Casual Employees.
Text
66 The starting point in the OSM Agreement is the text. Clause 12.5(a) contains two requirements relevant to the respondent: a call for expressions of interest for permanency; and the provision of offers of conversion from casual to permanent employment.
67 The principal issue in dispute between the parties is the timing of those requirements. In part, this dispute may be because the respondent understood the claimant’s claim was for offers and commencement of employment to be by 26 January 2024, which I did not understand to be the claimant’s argument in the end. However, I note the contravention alleged in the Claim as it relates to cl 12.5(b).
68 The claimant says the text of cl 12.5(a) imposes the two requirements on the respondent to occur within four weeks of registration of the OSM Agreement. As agreed by the parties, the OSM Agreement was registered on 22 December 2023 and four weeks from this date is 19 January 2024.
69 Thereafter, pursuant to cl 12.5(b), the Position ‘Position’ is not defined in the OSM Agreement, but the parties proceeded on the basis that ‘Position’ means permanent position. I accept that is what is intended by the word ‘Position’ in cl 12.5(b).
will be filled within seven days, where the applicants return confirmation of permanent employment.
70 The claimant initially suggested the text of cl 12.5(b) requires any permanent position to be occupied and commenced within seven days of the causal employee’s confirmation of permanent employment. However, in closing the claimant suggested the permanent position was to be filled in seven days, but that did not mean the employee was required to be on a vessel within seven days.
71 The claimant submits the text is clear and there is no ambiguity in the words used and their meaning.
72 That is, from the claimant’s perspective it is a straightforward lineal requirement of the call for expression of interest and provision of offers by 19 January 2024. Thereafter, any casual employee is to commence permanent employment within seven days of confirming acceptance of permanent employment, although it was unclear in closing whether the claimant maintained this was by 26 January 2024.
73 The respondent says the true situation is not as straightforward and that there are other factors effecting the ‘bottom line’ obligation contained in cl 12.5(a) and (b) to make offers of permanent employment to casual employees. These other factors include the industrial realities of the offshore oil and gas industry and drafting ‘blanks’ in cl 12.5(a) and (b). Thus, from the respondent’s perspective context is important.
Context and purpose
74 The claimant makes no specific submission on context, principally because the claimant does not accept there is a need to defer to any extraneous material where the plain meaning of the words in cl 12.5(a) and (b) need no further clarification.
75 The respondent appears to take no issue with the purpose behind cl 12.5(a) of the OSM Agreement, which is to convert to permanent employment up to five casual employees otherwise than specified in the casual conversion process outlined in cl 12.4 of the OSM Agreement or in any other industrial law.
76 However, the respondent says that the obligations imposed by cl 12.5(a) and (b) and the OSM Agreement generally is to be considered with regard to the respondent’s business, where that knowledge was common to the parties at the time the OSM Agreement was made.
77 In essence, and having regard to the evidence of Mr Harrower and Ms Jewson, the respondent says:
· as a ‘crewing agent’ providing labour to clients in the offshore oil and gas industry, it has little control over the manning requirements on client boats (subject to safe minimum manning) and any decision to increase the size of its permanent workforce can only be made where there is sufficient demand by the client;
· the terms of the OSM Agreement for a two - crew duty system mean employees work an even - time roster, and the respondent cannot require employees (both casual and permanent) to work outside the regular roster of the two - crew duty system, which may incur civil penalty; and
· the common practice is that employees are engaged for an entire swing; that is, for both the on - duty and off - duty period. Where an employee transitions from casual employment to permanent employment, the transition occurs at the commencement of the next on-duty period (not during the swing).
78 The respondent further says, while cl 12.5 of the OSM Agreement imposes two substantive obligations on the respondent, there are a number of other procedural ‘obligations’ imposed on the respondent which are not stated in the clause including, amongst other things, those relevant to making offers of employment and changing employees’ employment status.
79 In essence, the respondent says:
· the call for expressions of interest must be done in an equitable manner in a reasonable time frame;
· it must then conduct an expeditious assessment of those who expressed interest;
· upon making the offer of employment, the prospective applicant can consider the offer of employment and may negotiate on its terms and return the signed contract of employment;
· upon receipt of the signed contract of employment, within seven days it was obliged to hold the newly created permanent position for the prospective employee; and
· the prospective employee commences permanent employment as soon as practicable depending on where they are in their swing cycle.
80 The respondent further says that the claimant’s interpretation of cl 12.5(a) and (b) of the OSM Agreement fails to consider the common understanding between Mr Gakis and Mr Harrower of the need for client approval, the time required to complete the conversion process, and the vicissitudes associated with the time of year.
81 The respondent’s suggested construction of cl 12.5(a) and (b) of the OSM Agreement is:
· the respondent was required to call for expressions of interest for permanent employment by 19 January 2024, which it did on 19 December 2023 with a deadline for submission being 15 January 2024;
· thereafter there is no chronological deadline for the completion of the assessment of any expressions of interest, and subsequent making of offers of employment, other than it be done expeditiously. The respondent acknowledges there is no express reference to expeditiously in the OSM Agreement, but it was the parties’ ‘obvious’ intention that up to five new positions would be created shortly after the commencement of the OSM Agreement. The respondent says the claimant took no issue with the respondent’s timelines consistent with its understanding at the time that the assessment process and offers of permanent employment were not subject to any express deadline. The respondent accepts there was some time lag between the expressions of interest being received and the offers of permanent employment being made, but this delay was entirely reasonable having regard to the time of year, client delays, the assessment process and internal staffing issues. However, once the assessment process was completed, the respondent made the offers of permanent employment and provided proposed contracts of employment; and
· once the offer of permanent employment was confirmed by the applicant’s return of a signed contract of employment, the respondent’s obligation was to ‘fill’ the position by appointing the applicant to the permanent position so that it could not be taken by anyone else and to hold it open for that applicant. The respondent disputes the claimant’s suggestion the obligation is for the respondent to have an applicant commence permanent employment within seven days of signing a contract of employment, as this would be inconsistent with the industrial reality and would potentially expose the respondent to civil penalties for breaching the OSM Agreement and is incompatible with the two - crew duty system.
Determination on Preferred Construction
82 In part, each party’s suggested construction of a term of an enterprise agreement is preferred. In respect of cl 12.5(a) of the OSM Agreement, the claimant’s suggested construction is preferred and in respect of cl 12.5(b) of the OSM Agreement, the respondent’s suggested construction, in part, is preferred.
Clause 12.5(a)
83 With respect to the respondent, their suggested construction of cl 12.5(a) of the OSM Agreement seeks to strain the language in the clause and infer the inclusion of words that could have easily been inserted during the drafting process.
84 The respondent’s reasons for doing so are understandable. That is, the respondent was aware there was a requirement to carry out a truncated casual conversion process for up to five casual IRs. However, the timing of the registration of the OSM Agreement, coupled with other logistical factors, meant the respondent was likely to be under pressure to complete the entire process provided in cl 12.5(a) by 19 January 2024. To its credit, it appears the respondent kept open the timeframe for the submission of expressions of interest to enable as many applicants as possible to express interest in permanent employment bearing in mind the nature of its workforce.
85 However, what then happened is that the respondent was unable to complete the selection process and make offers of permanent employment by 19 January 2024, which is what is clearly stated and contemplated by cl 12.5(a) of the OSM Agreement.
86 Had cl 12.5(a) of the OSM Agreement contemplated an additional period of time between calling for expressions of interests and making offers of permanent employment, it was open for that period of time to be included in the agreement. Alternatively, the respondent could have required more than four weeks from registration of the OSM Agreement to carry out the process in cl 12.5(a), or that the process be subject to client approval.
87 Finally, the respondent could have imposed a shorter time period for the calling of expressions of interest on the basis that its obligations to make offers of permanent employment was by 19 January 2024. Of course, this may have invoked the ire of the claimant and casual IRs who missed the window for expressions of interest, but in the same way cl 12.5(a) is silent on any time frame to assess expressions of interest, it is also silent on the period the respondent leaves open for any call for expressions of interest.
88 That is, it was arguably open for the respondent to call for expressions of interest with a deadline of one day. Thereafter, provided the respondent completed the process by making offers of employment by 19 January 2024 it would have complied with the obligation set out in cl 12.5(a). It might have meant less than five casual employees expressed interest, in which case, arguably, the respondent was then obliged to make less than five offers of permanent employment under cl 12.5(c) of the OSM Agreement.
89 As noted by the respondent, the OSM Agreement is silent on the process by which the respondent assesses the suitability of the casual employees who submit an expression of interest for permanent employment. That the claimant and the respondent’s employees considered the respondent’s process cumbersome is neither here nor there.
90 The obligation the respondent had under cl 12.5(a) was to complete the call for expressions of interest and make offers of employment for permanent employment by 19 January 2024. How it did so was entirely a matter for the respondent.
91 This interpretation of cl 12.5(a) of the OSM Agreement gives effect to the intention of the parties in agreeing to an expedited casual conversion process for casual employees to convert to permanent employment outside of the usual process under cl 12.4, albeit it appears the inclusion of the clause was at the behest of the claimant.
Clause 12.5(b)
92 Unlike cl 12.5(a) of the OSM Agreement, cl 12.5(b) is not clear in respect of what was intended with the word ‘fill’, and it is not clear when the seven days is intended to commence from.
93 There are two parts to cl 12.5(b), namely: the Position (or permanent position) will be ‘filled’ within seven days; and a return confirmation of permanent employment.
94 At least three issues arise. First, what is meant by the word ‘fill’? Second, when does the seven days apply from? Third, what is the role of the return of confirmation?
95 That is, cl 12.5(b) is ambiguous and the clause itself suffers from drafting gaps, and, as a result, recourse to the industrial context is instructive. This much can also be seen in Ms Jewson’s and Mr Harrower’s evidence where each has a slightly different approach to when permanent employment was to commence.
96 Additionally, it may be impractical for a casual employee to commence permanent employment within seven days of returning confirmation of permanent employment in the manner suggested by the claimant.
97 The industry serviced by the OSM Agreement is offshore oil and gas where the employees are on a boat or something similar (vessel) Exhibit 5 at [12].
. There are recognised difficulties associated with the workplace. By way of example, crew changes at sea under cl 27.2 of the OSM Agreement require union agreement if there are no helicopter facilities or under cl 27.3 of the OSM Agreement the transfer of crew by basket requires strict safety considerations. Therefore, it is entirely possible that a casual employee may be on - swing offshore at the time of confirming permanent employment, and it is unsafe, or agreement cannot be reached to transfer the casual employee to onshore, so the respondent meets the requirement suggested by the claimant in the construction of cl 12.5(b), if the permanent employment position is on a different vessel. It also noted that the bargaining parties agreed at cl 5.2(a) to an ongoing process to achieve overall cost reduction and improvement in the viability of the business, so it is highly unlikely it was intended the respondent incur possible significant costs to give effect to the timing suggested by the claimant in cl 12.5(b).
98 Further, cl 25 of the OSM Agreement sets out the various requirements of the two - crew duty system, including under cl 25.23 where the respondent is to give reasonable notice to employees before transferring employees between vessels.
99 Simply put, in my view, the claimant’s suggested construction of cl 12.5(b) of the OSM Agreement does not lead to a harmonious outcome in light of the industrial realities of the particular industry. It is a construction that may lead at best to commercial nonsense and at worst unsafe outcomes or exposes to the respondent to other civil penalties. I do not accept this was the intention of the drafters.
100 The respondent’s suggested construction of cl 12.5(b) of the OSM Agreement is preferred in part because it: recognises the industrial reality of the industry and how employees work within the industry; recognises that employees and the respondent may negotiate terms of the employment contract (which the respondent is obliged to provide in writing under cl 12.2(b)); and promotes a harmonious outcome with other clauses in the OSM Agreement, including the swing cycles under cl 23.3.
101 That is, and notwithstanding it comes second in cl 12.5(b), the first requirement is for an applicant to confirm acceptance of any offer of permanent employment. This is entirely a matter for the applicant, both in relation to timing and acceptance/refusal, and which then logically triggers the respondent’s obligation. Without the applicant accepting an offer for permanent employment, there is nothing for the respondent to do.
102 This is also consistent with cl 12.7(c) of the OSM Agreement where a casual employee is not compelled to convert to permanent employment to replace a permanent employee.
103 Upon the applicant accepting the offer of permanent employment, the respondent then holds or approves the permanent position for the casual employee. In that sense, I accept the use of the word ‘fill’ in cl 12.5(b) means the permanent position is to be occupied by the applicant or held by the respondent for the applicant and no other.
104 I am not persuaded that the position being ‘filled’ within seven days, means the permanent position is to commence within seven days. Firstly, it was open to the drafters to use the word ‘commence’ in a similar way as it is used in cl 12.4(a) of the OSM Agreement. Second, as a matter of practicality, a casual employee may not be available, nor wish, to commence permanent employment within seven days of acceptance of the offer of permanent employment, if, for example, the offer of permanent employment is on a different vessel. Third, there is likely preparatory work for the transition from casual to permanent employment, such as the preparation of a written contract of employment.
105 I am also not persuaded the confirmation of the permanent employment is contingent on a returned signed written offer of employment, although I note the respondent’s obligation at the commencement of employment to provide a prospective employee with a written offer of employment under cl 12.2(b) of the OSM Agreement. Again, it was open to the drafters to make clear permanent employment was to commence within seven days of the return of a signed written offer of employment.
106 Furthermore, if there was a written offer of permanent employment signed by an applicant, there would be no need to ‘fill’ a position because the respondent and the applicant had already agreed the terms of the employment.
107 What is important for the purposes of cl 12.5(b) is the applicant knows they will be a permanent employee because they have a permanent position allocated to them.
108 Thereafter, I accept the respondent’s submission that it was intended the applicant commence the permanent position (bearing in mind it might be on another vessel) at the commencement of their next on - swing (or possibly at a time that might be mutually agreed between the applicant and the respondent).
109 I accept this construction for the following reasons:
· other than making provision for five additional permanent employees within four weeks of registration of the OSM Agreement, cl 12.5(a) and (b) are otherwise silent on how it was intended the expedited casual conversion process was to occur in comparison to the ordinary casual conversion process in cl 12.4 of the OSM Agreement (which is also subject to an undertaking to the OSM Agreement);
· it was unlikely to be intended that a casual employee transfer mid-swing to a permanent position under cl 12.5 given the impracticalities in doing so in the industry, which was known to the parties;
· the respondent has other obligations under the OSM Agreement, such as the provision of reasonable notice of transfer, the provision of written offers of employment, the swing cycle requirements in cl 23.3 of the OSM Agreement, and may be subject to civil penalties if it contravened other obligations; and
· the casual employee engagement continues to apply under cl 12.8 of the OSM Agreement.
Application of the Preferred Construction
110 Having regard to the evidence accepted by the Court and the preferred construction of cl 12.5(a) and (b), I find the respondent called for expressions of interest for permanent positions on or around 19 December 2023 in compliance with the first obligation under cl 12.5(a) of the OSM Agreement. Notably, the respondent received in excess of five expressions of interest before the respondent’s cut-off date of 15 January 2024.
111 I am satisfied and I find that in using the respondent’s eCrew system to send an email to its casual employees, the respondent used the system familiar to its employees for communication of information of the type contemplated in cl 12.5(a) of the OSM Agreement. That Jeffry Badger says he did not get the email is not explained by either party, but notably he submitted an expression of interest and there is no other evidence the respondent’s system was defective.
112 On 12 February 2024, five casual employees were informed their applications for permanent employment was successful Exhibit 5 at WH-3.
.
113 On 19 February 2024, the respondent made offers of permanent employment to Richard Badger, Rewi Whaitiri, Mitch Keighran, and Matthew Duguid. On 29 February 2024, the respondent made a written offer of permanent employment to Jeffry Badger.
114 In making the offers of permanent employment on either 12 February 2024 or 19 and 29 February 2024, the respondent failed to comply with the second obligation under cl 12.5(a) of the OSM Agreement, where the offers of permanent employment were required to be made by 19 January 2024.
115 That is, even if the email sent on 12 February 2024 could amount to an offer of permanent employment, this still exceeded the time frame required in cl 12.5(a) of the OSM Agreement.
116 No evidence was led by the claimant that the respondent failed to either hold or denied an applicant occupancy of any of the five permanent positions after the five applicants confirmed their acceptance of the offers of permanent employment. Simply put, there is no evidence of any of the five successful applicants accepting any offer of permanent employment. The respondent informed five of the applicants they were successful, and then the respondent moved to formalise their permanency. It is reasonable to assume that the respondent and the successful applicants never countenanced any applicant might refuse an offer of permanent employment having expressed an interest in it.
117 Thereafter, as intended, the five successful applicants/casual employees commenced permanent employment on their next on-swing Exhibit 6 at [53].
.
118 In those circumstances I cannot be satisfied the respondent contravened cl 12.5(b) of the OSM Agreement by failing to fill the permanent positions within seven days of any return of confirmation of permanent employment. Five casual employees were informed their expression of interest for permanent employment was successful on 12 February 2024 and nothing in the evidence suggests the permanent positions were not filled as a result or not filled within seven days.
119 The manner in which the parties approached cl 12.5 of the OSM Agreement leaves a lot to be desired. In my view, there was a real deficiency in the overall drafting and how cl 12.5 was to operate with the claimant more interested in an easier process and the respondent more interested in a fair and business conscious process. The net result was confusion in the application process.
Conclusion
120 I am satisfied the claimant has proven the respondent contravened cl 12.5(a) of the OSM Agreement by failing to provide five casual employees (IRs) with offers to convert to permanent employment within 4 weeks of registration of the OSM Agreement, notwithstanding the respondent called for expressions of interest within time.
121 In contravening cl 12.5(a) of the OSM Agreement in the manner described, I find the respondent contravened s 50 of the FWA by contravening a term of the OSM Agreement. A contravention of s 50 of the FWA is a contravention of a civil penalty provision.
122 I am not satisfied the claimant has proven the respondent contravened cl 12.5(b) of the OSM Agreement.
123 I will hear from the parties regarding programming orders in respect of the imposition of a civil penalty.



D. SCADDAN
INDUSTRIAL MAGISTRATE

SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court (WA)
Jurisdiction
[1] An employee, an employee organisation or an inspector may apply to an eligible state or territory court for orders regarding a contravention of the civil penalty provisions identified in s 539(2) of the FWA.
[2] The IMC, being a Court constituted by an industrial magistrate, is ‘an eligible State or Territory court’: FWA, s 12 (see definitions of ‘eligible State or Territory court’ and ‘magistrates court’); Industrial Relations Act 1979 (WA), s 81 and s 81B.
[3] The application to the IMC must be made within six years after the day on which the contravention of the civil penalty provision occurred: FWA, s 544.
[4] The civil penalty provisions identified in s 539 of the FWA include the terms of an enterprise agreement where the agreement applies to give an entitlement to a person and to impose an obligation upon a respondent employer: FWA, s 51(2). The agreement applies if it covers the employee or the employee organisation and the employer, the agreement is in operation and no other provision of the FWA provides that the agreement does not apply: FWA, s 52(1) (when read with s 53 of the FWA).
[5] An obligation upon an ‘employer’ covered by an agreement is an obligation upon a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA, s 42, s 53, s 14 and s 12. An entitlement of an employee covered by an agreement is an entitlement of an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer’: FWA, s 42, s 53 and s 13.
Contravention
[6] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the Court may make orders for an employer to pay to an employee an amount that the employer was required to pay under an enterprise agreement: FWA, s 545(3)(a).
[7] The civil penalty provisions identified in s 539 of the FWA include:
· Contravening a term of an enterprise agreement: FWA, s 50.
[8] An ‘employer’ has the statutory obligations noted above if the employer is a ‘national system employer’ and that term, relevantly, is defined to include ‘a corporation to which paragraph 51(xx) of the Constitution applies’: FWA, s 14 and s 12. The obligation is to an ‘employee’ who is a ‘national system employee’ and that term, relevantly, is defined to include ‘an individual so far as he or she is employed … by a national system employer’: FWA, s 13
[9] Where the IMC is satisfied that there has been a contravention of a civil penalty provision, the Court may make orders for:
· An employer to pay to an employee an amount that the employer was required to pay under the FWA: FWA, s 545(3).
· A person to pay a pecuniary penalty: FWA, s 546.
[10] In contrast to the powers of the Federal Court and the Federal Circuit Court, an eligible State or Territory court has no power to order payment by an entity other than the employer of amounts that the employer was required to pay under the FWA. For example, the IMC has no power to order that the director of an employer company make payments of amounts payable under the FWA: Mildren v Gabbusch [2014] SAIRC 15.
Burden and standard of proof
[11] In an application under the FWA, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms:
It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not,’ the burden is discharged, but, if the probabilities are equal, it is not.
[12] In the context of an allegation of the breach of a civil penalty provision of the Act it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. (362)

SCHEDULE II: Construction of Industrial Instruments
[1] This case involves, in part, construing industrial agreements. The relevant principles to be applied when interpreting an industrial instrument are set out by the Full Bench of the Western Australian Industrial Relations Commission in Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595 [21] - [23].
[2] In summary (omitting citations), the Full Bench stated:
The general principles that apply to the construction of contracts and other instruments also apply to the construction of an industrial agreement;
(1) The primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;
(2) It is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties' subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;
(3) The objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;
(4) The apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;
(5) An instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ’;
(6) An instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation; and
(7) Industrial agreements are usually not drafted with careful attention to form by persons who are experienced in drafting documents that have legal effect.
[3] The following is also relevant:
· Ascertaining the intention of the parties begins with a consideration of the ordinary meaning of the words of the instrument. Ascertaining the ordinary meaning of the words requires attention to the context and purpose of the clause being construed. City of Wanneroo at [53] - [57] (French J).
· Context may appear from the text of the instrument taken as a whole, its arrangement and the place of the provision under construction. The context includes the history of the instrument and the legal background against which the instrument was made and in which it was to operate. City of Wanneroo [53]  [57] (French J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 [28]  [30] (Katzmann J).