2026 WAIRC 00454
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00454



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
THURSDAY, 23 APRIL 2026



DELIVERED
:
FRIDAY, 3 JULY 2026



FILE NO.
:
M 114 OF 2025



BETWEEN
:
CFMEU


CLAIMANT





AND





TSM OFFSHORE PTY LTD


RESPONDENT

CatchWords : INDUSTRIAL LAW – FAIR WORK – Alleged contravention of Fair Work Act 2009 (Cth) – Alleged breach of an enterprise agreement – Minimum crewing levels on vessels – Consideration of terms of enterprise agreement
Legislation : Fair Work Act 2009 (Cth)
Fair Work (Registered Organisations) Act 2009 (Cth)
Instrument : Tidewater Ship Management (Australia) Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023
Cases referred
to in reasons: : Director General, Department of Education v United Voice WA [2013] WASCA 287; (2014) 94 WAIG 1
WA Prison Officers’ Union of Workers v Minister for Corrective Services [2025] WASCA 177; (2025) 105 WAIG 2703
Mildren v Gabbusch [2014] SAIRC 15
Miller v Minister of Pensions [1947] 2 All ER 372
Gayle Balding, Workplace Ombudsman v Liquid Engineering 2003 Pty Ltd [2008] WAIRC00350; (2008) 88 WAIG 626
Cuzzin Pty Ltd v Grnja [2014] SAIRC 36
Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72
Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 00886; (2018) 98 WAIG 1410
Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595
Result : Other than in respect of the admitted contravention, the claim is dismissed
Representation:
Claimant : Ms S. Sayed (of counsel)
Respondent : Mr J. Parkinson (of counsel)


REASONS FOR DECISION
Background
1 On 10 September 2025, the Construction, Forestry and Maritime Employees Union lodged an originating claim alleging that Tidewater Ship Management (Australia) Pty Ltd (Tidewater) contravened cl 24.4(a), cl 24.5(a) and cl 24.5(c) of the Tidewater Ship Management (Australia) Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023 (the Agreement) by failing to crew three vessels either in accordance with the relevant vessel’s minimum safe manning certificate and/or in agreement with the claimant and failing to engage a Chief Integrated Rating (IR) (the Claim).
2 During the hearing on 23 April 2026, the claimant applied to amend the respondent’s name from Tidewater to OSM Thome WA Pty Ltd (OSM). Counsel for the respondent confirmed that the company’s name was updated with the Australian Securities and Investments Commission. The Court granted this amendment. Orders made by the Court 23 April 2026; ts 5.

3 On 12 June 2026, by consent, the Court ordered the following:
(a) the claimant’s name is changed to ‘CFMEU’ (the claimant); and
(b) the respondent’s name is changed to ‘TSM Offshore Pty Ltd’ (the respondent). Orders made by the Court 12 June 2026.

4 In failing to comply with the Agreement’s requirements related to crewing the three vessels, the claimant alleges that the respondent has contravened s 50 of the Fair Work Act 2009 (Cth) (FWA) and seeks the imposition of a civil pecuniary penalty.
5 On 16 October 2025, the respondent partially admitted the Claim by admitting it failed to comply with the crewing requirements in the Agreement between 8 and 19 May 2024 in relation to one of the vessels, the Tortuga Tide, when one IR was demobilised on medical grounds.
6 The respondent denies the balance of the Claim.
7 These reasons determine the issue of the respondent’s liability, if any, in respect of the balance of the Claim.
8 Schedule I of these reasons outlines the Court’s jurisdiction, practice and procedure under the FWA.
Agreed Facts
9 The parties lodged a statement of agreed facts, Exhibit 1 – Statement of Agreed Facts lodged on 10 February 2026.
where they agreed that:
(a) the claimant is a registered organisation under the Fair Work (Registered Organisations) Act 2009 (Cth), an employee organisation as defined in s 12 of the FWA, and an employee organisation to which the Agreement applied within the meaning of s 52 of the FWA;
(b) the respondent is a ‘constitutional corporation’ within the meaning of that term in s 12 of the FWA, a ‘national system employer’ within the meaning of that term in s 14 of the FWA, and an employer to which the Agreement applied within the meaning of s 52 of the FWA;
(c) the Agreement commenced operation on 25 January 2024 and has a nominal expiry date of 1 August 2027; and
(d) the Agreement covers the claimant and applies to the respondent and applies to the respondent’s employees engaged in the classifications in the Agreement, including IRs.
10 The vessels in the Claim are the Tortuga Tide; Pacific Guillemot; and Pacific Dove (collectively referred to as the Vessels).
11 In relation to the Minimum Safe Manning Certificates (MSMC) for the Vessels, the following is agreed:
Tortuga Tide
(a) on or around 15 September 2023, the Port Authority of Singapore issued an MSMC for the Tortuga Tide effective 25 September 2023 (First Tortuga Tide Certificate); Exhibit 1, agreed document 2.

(b) on 10 January 2025, the Port Authority of Singapore issued an MSMC for the Tortuga Tide effective 25 September 2023 (Second Tortuga Tide Certificate); Exhibit 1, agreed document 3.

(c) the respondent did not comply with the crewing requirements set out in the Agreement between 8 and 19 May 2024;
Pacific Dove
(a) the Port Authority of Singapore issued an MSMC for the Pacific Dove effective 13 September 2022 (First Pacific Dove Certificate); Exhibit 1, agreed document 4.

(b) the Port Authority of Singapore issued an MSMC for the Pacific Dove effective 19 June 2024 (Second Pacific Dove Certificate); Exhibit 1, agreed document 5.
and
Pacific Guillemot
(a) the Port Authority of Singapore issued an MSMC for the Pacific Guillemot effective 12 September 2022 (Pacific Guillemot Certificate). Exhibit 1, agreed document 6.

12 The First and Second Tortuga Tide Certificates are annexed to Schedule III of these reasons.
The Claim in More Detail
13 The claimant alleges that:
Tortuga Tide
(a) from on or around 31 January 2024 until on or around 8 February 2024, the Tortuga Tide was sailing outside of Australian waters and was crewed with less than five IRs;
(b) pursuant to cl 24.5(a) of the Agreement, the crewing levels was to be agreed between the claimant and the respondent;
(c) pursuant to cl 24.5(c) of the Agreement, the crewing levels was to be no less than the numbers provided for in the First Tortuga Tide Certificate;
(d) pursuant to cl 24.4(a) of the Agreement and the First Tortuga Tide Certificate, the crewing on the Tortuga Tide was to be no less than five IRs;
(e) pursuant to cl 24.4(a) of the Agreement, one of the IRs was to be engaged as a Chief IR;
Pacific Dove
(a) from on or around 28 May 2024 until on or around 18 June 2024, the Pacific Dove was sailing outside of Australian waters and was crewed with less than six IRs;
(b) from on or around 19 June 2024 until on or around 30 January 2025, the Pacific Dove was sailing outside of Australian waters and was crewed with less than six IRs;
(c) pursuant to cl 24.5(a) of the Agreement, the crewing levels was to be agreed with the claimant and the respondent;
(d) pursuant to cl 24.5(c) of the Agreement, the crewing levels was to be no less than the numbers provided for in the First Pacific Dove Certificate;
(e) pursuant to cl 24.4(a) of the Agreement and the First Pacific Dove Certificate and the Second Pacific Dove Certificate, the crewing on the Pacific Dove was to be no less than six IRs;
(f) pursuant to cl 24.4(a) of the Agreement, one of the IRs was to be engaged as a Chief IR;
Pacific Guillemot
(a) from on or around 30 January 2024 until on or around 30 January 2025, the Pacific Guillemot was sailing outside of Australian waters and was crewed with less than six IRs;
(b) pursuant to cl 24.4(a) of the Agreement and the Pacific Guillemot Certificate, the crewing on the Pacific Guillemot was to be no less than six IRs; and
(c) pursuant to cl 24.4(a) of the Agreement, one of the IRs was to be engaged as a Chief IR.
14 The contraventions alleged by the claimant are that the respondent failed to:
Tortuga Tide
(a) crew the Tortuga Tide in agreement with the claimant contrary to cl 24.5(a) of the Agreement;
(b) crew the Tortuga Tide in accordance with the First Tortuga Tide Certificate contrary to cl 24.5(c) of the Agreement;
Pacific Dove
(a) crew the Pacific Dove in agreement with the claimant contrary to cl 24.5(a) of the Agreement;
(b) crew the Pacific Dove in accordance with the First Pacific Dove Certificate contrary to cl 24.5(a) of the Agreement;
(c) crew the Pacific Dove in accordance with the Second Pacific Dove Certificate contrary to cl 24.4(a) of the Agreement;
(d) engage a Chief IR on the Pacific Dove contrary to cl 24.4(a) of the Agreement;
Pacific Guillemot
(a) crew the Pacific Guillemot in accordance with the Pacific Guillemot Certificate contrary to cl 24.4(a) of the Agreement; and
(b) engage a Chief IR on the Pacific Guillemot contrary to cl 24.4(a) of the Agreement.
15 These are the contraventions the claimant is required to prove to the requisite standard.
The Response in More Detail
16 The respondent refers to cl 24.4 and cl 24.5 of the Agreement, and asserts that the Agreement’s crewing framework is:
(a) for vessels not in transit, cl 24.4 of the Agreement applies to set a minimum crewing standard;
(b) for vessels in transit (or laid up), cl 24.5 of the Agreement applies and provides that:
(i) crewing will be agreed with the CFMEU; however
(ii) crewing will be based around previous custom and practice; provided that,
(iii) crewing complies with the MSMC requirements.
17 The respondent says that the proper construction of the word ‘however’ in cl 24.5(a) of the Agreement is its ordinary and natural meaning being ‘[u]sed to introduce a statement that contrasts with or seems to contradict something that has been said previously’. Response lodged 16 October 2025 [5].
Thus, the use of the word ‘however’ facilitates a departure from the requirement to agree with the claimant.
18 Each of the Vessels is categorised for the purposes of cl 24.4 of the Agreement, where the Tortuga Tide and Pacific Guillemot are Platform Supply Vessels (PSV) and the Pacific Dove is a Support Vessel.
Tortuga Tide
19 For the period 31 January 2024 to 7 February 2024 the Tortuga Tide was not required to be crewed with five IRs and was crewed in compliance with the applicable Second Tortuga Tide Certificate, and was crewed in compliance with the Agreement.
Pacific Dove
20 For the period 28 May 2024 to 18 June 2024 the Pacific Dove was not required to be crewed with six IRs and was crewed in compliance with the First Pacific Dove Certificate, and was crewed in compliance with the Agreement.
21 For the period 19 June 2024 to 30 January 2025 the Pacific Dove was not required to be crewed with six IRs and was crewed in compliance with the Second Pacific Dove Certificate, and was crewed in compliance with the Agreement.
Pacific Guillemot
22 For the period 30 January 2024 to 30 January 2025 the Pacific Guillemot was not required to be crewed with six IRs and was crewed in compliance with the Pacific Guillemot Certificate, and was crewed in compliance with the Agreement
23 The respondent denies that it engaged in any contravening conduct (save for that admitted) alleged by the claimant.
Other Evidence
Claimant
24 The claimant relied upon a witness statement of George Gakis (Mr Gakis), signed on 25 February 2026. Exhibit 2 – Witness Statement of George Gakis signed on 25 February 2026, noting that the respondent objected to some of the contents of the witness statement, which the claimant either conceded, or the Court ruled as inadmissible.
A summary of his admissible evidence is as follows.
25 Mr Gakis is the Deputy Secretary for the Western Australian Branch of the Maritime Union of Australia Division of the CFMEU.
26 Mr Gakis was involved in the bargaining negotiations for the Agreement. Exhibit 2 [6].

27 Mr Gakis referred to the respondent’s operations as a crewing agency providing crewing onboard vessels performing work in the offshore industry. Exhibit 2 [10].

28 Mr Gakis explained that an IR holds a Certificate of Proficiency in Integrated Rating (COP) which is issued by the Australian Maritime Safety Authority and verifies that the certificate holder is qualified to perform both deck and engine-room duties on vessels. Exhibit 2 [11].
He attached a guidance notice issued by the Australian Maritime Safety Authority summarising the requirements for a COP to his witness statement. Exhibit 2, GG-01.

29 Mr Gakis explained the MSMC, which is issued by a vessel’s flag state and sets out the minimum number of personnel on the deck and engine areas. Exhibit 2 [13].
It is a mandatory requirement for all vessels to carry an MSMC and the minimum requirements of the qualifications and certifications of personnel is regulated by the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (signed on 7 July 1978) (STCW). Exhibit 2 [14]  [15], referring to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, signed on 7 July 1978, [1984] ATS 7 (entered into force 28 April 1984).

30 Where a MSMC prescribes a rating, the position ‘should be filled by an IR’. Exhibit 2 [18].
Where a MSMC requires six IRs onboard a vessel it consists of:
(a) three ratings forming part of Navigational Watch/Able Seafarer (Deck) – STCW reg II/4 or reg II/5;
(b) two other deck ratings/personnel – STCW reg VI/1; and
(c) one other engine room rations/personnel – STCW reg VI/1
31 On or around 10 January 2025, Mr Gakis became aware that the flag state of the vessel, the Maritime Port Authority of Singapore, issued a revised MSMC for the Tortuga Tide (being the Second Tortuga Tide Certificate). Exhibit 2 [23].

32 Mr Gakis was not cross-examined on his evidence.
Respondent
33 The respondent relied upon a witness statement of Renae Hesford (Ms Hesford) signed on 25 March 2026. Exhibit 3 – witness statement of Renae Hesford signed on 25 March 2026, noting there was a minor amendment to the witness statement at [5] and two paragraphs were removed ([10] and [17]).
A summary of her admissible evidence is as follows.
34 Ms Hesford is employed by OSM, the parent company of Tidewater, as the Managing Director. Tidewater was purchased by OSM in February 2023. Ms Hesford outlines her employment history with OSM. Exhibit 3 [5]  [9].

35 According to Ms Hesford there are different vessel designations, and the type of vessel dictates the number and classification of crewing levels. The Tortuga Tide and Pacific Guillemot are PSVs. The Pacific Dove is an Anchor Handling Tug Supply Vessel, also referred to as a Support Vessel. Exhibit 3 [11]  [14].

36 From on or around 31 January 2024 to 7 February 2024, the Tortuga Tide was crewed with four IRs and one cook, who held a reg VI/1 rating. Exhibit 3 [15], RH04  RH06.

37 Ms Hesford was cross-examined on her evidence. Ms Hesford was mainly called upon by the claimant to give an opinion as to the contents of the various MSMCs. Ms Hesford was unable to say with any precision where the Tortuga Tide was located at any point in time, save that she could say that the Tortuga Tide was operational and on charter with a customer. ts 37.

38 She made no other enquiries with respect to the Pacific Dove and Pacific Guillemot other than that they were operational, and was largely driven by responding to the contents of Mr Gakis’s witness statement.
Submissions
Construction of an Enterprise Agreement
39 In part, the determination of the Claim involves consideration of the proper construction of the terms of the Agreement.
40 The general principles concerning the construction of industrial agreements are wellsettled. There are many authorities, both State and Federal, reciting the general principles. I refer to the summary by Buss J in Director General, Department of Education v United Voice WA [2013] WASCA 287 at [81] to [83] (and to the summary of principles in Schedule II to these reasons Schedule II to these reasons provides more detail on the general principles. These principles were also cited and applied in WA Prison Officers’ Union of Workers v Minister for Corrective Services [2025] WASCA 177; (2025) 105 WAIG 2703 [45] (Smith AUJ).
):
The construction of an industrial agreement involves ascertaining what a reasonable person would have understood the parties to the agreement to mean. The language of the agreement should be understood in the light of its industrial context and purpose. See Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 [2] (Gleeson CJ & McHugh J).
In Kucks v CSR Ltd (1996) 66 IR 182, Madgwick J observed:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand (184). (emphasis added)
See also City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362, 378 - 379 (French J) (City of Wanneroo); Amcor [96] (Kirby J), [129] - [130] (Callinan J).
The words of a clause in a written agreement are to be given the most appropriate meaning which they can legitimately bear. A court must have regard to all of the provisions of the agreement with a view to achieving harmony among them. See Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 - 110 (Gibbs J). These propositions are applicable to instruments generally, subject to any particular rules of construction which have been developed in relation to a particular kind of provision or instrument.
41 Schedule II of these reasons sets out a summary of those principles applicable to the construction of industrial instruments.
Claimant’s Submissions
42 In respect of the Tortuga Tide for the period 31 January 2024 to 8 February 2024, the claimant submits the First Tortuga Tide Certificate is the appliable MSMC, which required a minimum crewing level of six IRs, consistent with the Agreement.
43 In respect of the Pacific Dove and Pacific Guillemot, the claimant submits the applicable MSMC required a minimum crewing level of six IRs.
44 The claimant otherwise relies upon the terms of cl 24.4 and cl 24.5 of the Agreement.
Respondent’s Submissions
45 In respect of the Tortuga Tide for the period 31 January 2024 to 8 February 2024, the respondent submits that the Second Tortuga Tide Certificate is the applicable MSMC, where it superseded and replaced the First Tortuga Tide Certificate, relying upon the contents of the special requirements in the Second Tortuga Tide Certificate.
46 That is, the relevant ‘GP ratings’ which formed part of the navigational/engine watch that held an IR II/4 and IR III/4 qualification was four. Outline of respondent’s submissions lodged 9 April 2026; see also Exhibit 1, agreed document 3.
Based on Ms Hesford’s evidence, the respondent complied with its minimum crew levels.
47 In respect of the Pacific Dove and Pacific Guillemot, the respondent submits that no evidence was led by the claimant in support of the alleged breaches and contraventions, and on that basis alone the Claim as it relates to these two vessels should be dismissed.
Pacific Dove and Pacific Guillemot
48 As already mentioned, the claimant alleges that in respect of the Pacific Dove and Pacific Guillemot, the respondent breached cl 24.4(a), cl 24.5(a) and cl 24.5(c) of the Agreement, thereby contravening s 50 of the FWA.
49 Accordingly, the claimant is required to prove to the requisite standard the contravention it alleges.
50 The claimant led no evidence of:
(a) crewing levels on the Pacific Dove during the dates it alleged the Agreement was breached;
(b) crewing levels on the Pacific Guillemot during the dates it alleged the Agreement was breached;
(c) the composition of the crew on the Pacific Dove during the dates it alleged the Agreement was breached;
(d) the composition of the crew on the Pacific Guillemot during the dates it alleged the Agreement was breached;
(e) how or what, if any, agreement with the claimant relevant to the Pacific Dove the respondent failed to agree to as it related to crewing levels; and
(f) where the Pacific Dove and Pacific Guillemot were located during the alleged breach times.
51 The agreed facts, the First and Second Pacific Dove Certificates and the Pacific Guillemot Certificate do no more than inform what the minimum crewing levels and the composition of those crew levels might be.
52 Looking then at the whole of the evidence, which includes Ms Hesford’s evidence, the number and composition of the crew on the Pacific Dove and Pacific Guillemot at the times the claimant alleges the Agreement was breached is taken no further. ts 39.

53 The commencement of the Claim, an allegation, and some vague suggestion in the submissions does not constitute proof of any contravention to the required standard. No finding of fact can be made by the Court on how many crew members were on the Pacific Dove and the Pacific Guillemot or their rating.
54 Therefore, the claimant cannot prove, and has not proven, that the respondent breached the Agreement at the times alleged as it relates to the crewing levels and the composition of the crew on the Pacific Dove and Pacific Guillemot. If the claimant cannot establish, and indeed it has not established, a breach of the Agreement, then there is no contravention of s 50 of the FWA.
55 The Claim alleging contraventions of s 50 of the FWA as it relates to the Pacific Dove and the Pacific Guillemot are dismissed. Therefore, it is unnecessary to consider the terms of the Agreement; the First and Second Pacific Dove Certificates; or the Pacific Guillemot Certificates in making this determination.
Tortuga Tide
56 The first alleged contravention relates to the crewing level and composition of the crew on the Tortuga Tide on or around 31 January 2024 to 8 February 2024.
57 According to Ms Hesford, the crewing levels and composition of the crew on the Tortuga Tide from on or around 31 January 2024 to 7 February 2024, was four IRs and one cook, who held a reg VI/1 rating. Along with the annexures to Ms Hesford’s witness statement, this was the only evidence on this issue.
58 The qualifications of the four IRs and cook holding the VI/1 rating are contained in an annexure to Ms Hesford’s witness statement, and shows: Exhibit 3, RH-4.

29 January 2024 -
07 February 2024
IR II5 & III5
IR II5 & III5
IR II4 & III4
IR II4 & III4
CK. VI/1
4x IR
1x CK
2* II/4 & III/4
2* II/5 & III/5
1* VI/1
59 That is, there were two crew members who held IR II/5 and IR III/5 qualifications and two crew members who held IR II/4 and IR III/4 qualifications, and one crew member who held a VI/1 qualification.
60 There was also no evidence of where the Tortuga Tide was located during the alleged breach period. The Claim alleges that the Tortuga Tide was sailing outside of Australian waters, but beyond this allegation, the claimant led no evidence of, in fact, where the vessel was sailing.
61 Again, considering the whole of the evidence, including Ms Hesford’s evidence, she could not confirm the location of the Tortuga Tide in or out of Australia. The best Ms Hesford could say was that the Tortuga Tide was operational and on contract, but she did not track its whereabouts at any point, including how many nautical miles off the coast it was. ts 37  38.

62 There are two MSMCs that purported to cover the period from around 31 January 2024 to 8 February 2024; the First and Second Tortuga Tide Certificates.
63 The claimant asserts the First Tortuga Tide Certificate was the relevant MSMC for that period.
64 The respondent says the Second Tortuga Tide Certificate was the relevant MSMC for that period.
Which MSMC Applies and What were the Minimum Crew Levels?
65 I note the Claim alleges that the First Tortuga Tide Certificate applied for the period 31 January 2024 to 8 February 2024, yet the Second Tortuga Tide Certificate applied for the period 8 May 2024 to 19 May 2024 (presumably because the claimant says that the Tortuga Tide was sailing within Australian waters), notwithstanding it says that the Second Tortuga Tide Certificate could not have applied to the first time period because it was dated 10 January 2025.
66 The content of both MSMCs is relevant.
The First Tortuga Tide Certificate
67 The First Tortuga Tide Certificate provides for the relevant minimum crewing levels, as follows, (also referred to by Mr Gakis):
(a) three ratings forming part of Navigational Watch/Able Seafarer (Deck) – STCW reg II/4 or II/5;
(b) two other deck ratings/personnel – STCW reg VI/1; and
(c) one other engine room rations/personnel – STCW reg VI/1.
68 But, the First Tortuga Tide Certificate also states the following special requirement or condition:
IF SHIP MANNED WITH GP RATINGS, ONLY 4 GP RATINGS WITH BOTH II/4 (OR II/5) AND III4 (OR III5) AND 1 OTHER GP RATING IS REQUIRED. Exhibit 1,

69 The special requirement for the Tortuga Tide was a reduced crew number provided four of the crew qualifications met the rating IR II/4 and IR III/4 or IR II/5 and IR III/5, and there was one further crew member with one other rating.
70 The supplementary explanatory note to the First Tortuga Tide Certificate, at paragraphs three and four, assists with the reason that may underpin this special requirement, which is similarly recognised in the guidance notice to Marine Order 73 – Certificate of Proficiency Integrated Rating attached to Mr Gakis’s witness statement. Exhibit 2, GG-01.
That is, a crew member holding the IR II/5 and IR III/5 qualifications are considered a higher grade in terms of qualifications and experience to a crew member with IR II/4 and IR III/4 qualifications. It must follow that both IRs (IR II/4 and IR II/5) are considered higher grade in terms of qualifications and experience to a crew member with a VI/1 qualification. In that case, the higher qualification can be considered as part of the total number of personnel onboard to meet the manning requirements.
71 Therefore, if there are four appropriately qualified crew members, plus one more with a qualification, the special requirement in the First Tortuga Tide Certificate will have been met.
72 By reference to the uncontroverted evidence of Ms Hesford, there were four crew members on the Tortuga Tide in the relevant period who held a rating of IR II/4 and IR III/4 (two crew members) or IR II/5 and IR III/5 (two crew members). There was also one additional crew member who held a rating of VI/1.
73 Because of the special requirement contained in the First Tortuga Tide Certificate, and provided the respondent complied with that requirement, the number of crew members was reduced to five, rather than six as would have applied had there been less crew members with the required qualifications.
74 Accordingly, had the First Tortuga Tide Certificate applied from 31 January 2024 to 8 February 2024, the respondent’s crewing level would have complied with the terms of the MSMC.
Second Tortuga Tide Certificate
75 The Second Tortuga Tide Certificate provides for the relevant minimum crewing levels, being four GP Ratings forming part of a navigational/engine watch. STCW reg II/4, reg III/4.

76 Similar to the First Tortuga Tide Certificate, the supplementary explanatory note to the Second Tortuga Tide Certificate, at paragraphs three and four, provides that shipboard personnel holding a COP under STCW reg III/5 for AS (Engine) can be considered as part of the total number of personnel deployed onboard to meet the manning requirements for the capacity. That is, a crew member holding the IR II/5 and IR III/5 qualifications is considered a higher grade in terms of qualifications and experience to a crew member with IR II/4 and IR III/4 qualifications.
77 The Second Tortuga Tide Certificate also contains special requirements, which, relevant to the Claim, include special requirements 1, 3 and 4:
1. Ship is manned with the number and grade of personnel specified in the Table above restricted within Australia waters.
…
3. This [MSMC] is effective from 25 September 2023 and reprinted on 10 January 2025, superseding and replacing any previously issued [MSMC](s) which were identified to inadvertently contain incorrect details and requirements.
4. The effective date mentioned below [10 January 2025] only serves as the printed date of this document.
78 Had the Second Tortuga Tide Certificate applied from 31 January 2024 to 8 February 2024, the respondent’s crewing level would have also complied with the terms of the MSMC, that is, if the vessel was inside Australian waters (which remains unknown on the evidence). If the Tortuga Tide was outside of Australian waters (which also remains unknown on the evidence), then either cl 24.4 or cl 24.5 of the Agreement applies.
79 Therefore, where the evidence satisfies me that the minimum crewing levels satisfies both the First and Second Tortuga Tide Certificates, it is not strictly necessary to resolve which MSMC applied to the Tortuga Tide for the period 31 January 2024 to 8 February 2024. There are some oddities about the Second Tortuga Tide Certificate, including it purporting to apply in an unlimited trading area but then specifying the minimum number and grade of personnel being restricted to Australian waters. Further, the Second Tortuga Tide Certificate purported to retrospectively supersede the First Tortuga Tide Certificate.
80 However, in the absence of any evidence to contrary, the Second Tortuga Tide Certificate is clear on its face and it appears, and I accept, that this MSMC applies for the period 31 January 2024 to 8 February 2024. I also note that the Second Tortuga Tide Certificate is consistent with the crewing levels in cl 24.4 of the Agreement as it relates to a PSV (see below).
81 Therefore, the claimant has not proven that the respondent breached the Agreement as it relates to the minimum crewing level referred to in the First Tortuga Tide Certificate on the Tortuga Tide for the period 31 January 2024 to 8 February 2024. If the claimant cannot establish, and indeed it has not established, a breach of cl 24.4 of the Agreement, then there is no contravention of s 50 of the FWA.
Crewing in Agreement with the Claimant
82 The second alleged contravention relates to the respondent failing to agree with the claimant crewing levels for the Tortuga Tide from 31 January 2024 to 8 February 2024.
83 Notably, there is no evidence of what, if any, agreement there was with the claimant in respect of the crew of the Tortuga Tide during this period or how the respondent is alleged to have failed to agree the crewing levels with the claimant for the Tortuga Tide.
84 Reference to the Agreement demonstrates the following.
The Agreement
85 Clause 24.4 of the Agreement provides:
Minimum Crewing of Vessels
Type of Vessel
Supply - PSV
Supply - ROV/IMR
Support
Support Vessels (that can generate 18000 BHP or above)
Seismic
Self Propelled Drill Vessel
Specialist
Classification







Chief IR
0
1
0
1
0
1
1
IR/Crane Op
0
0
0
0
0
0
0
IR
4
4
4
4
3
5
5
PIR




1
1

Chief Cook
Benchmark
Benchmark
Benchmark
Benchmark
Benchmark
1
Benchmark
Cook
1
1
1
1
1
1
1
Chief Steward
Benchmark
Benchmark
Benchmark
Benchmark
Benchmark
1
Benchmark
Steward
Benchmark
Benchmark
Benchmark
1
Benchmark
1
Benchmark
(a) Notes:
· Support vessels performing anchor handling operations will have one of the 4 IR’s appointed as a CIR.
· In addition to the above, 1 x IR/Crane Operator per twelve (12) hrs of crane operations.
· PIRs listed above can be replaced with an IR.
· A PIR may be used in lieu of an IR where a Vessel Safe Manning Certificate (SMC) permits and in agreement with the Union. Where agreed the PIR will be paid as an Integrated Rating.
· Crewing of Vessels will be no less than the Vessel's Minimum Safe Manning Certificate irrespective of any dispensations or reductions that may otherwise be permitted by law.
· A Rating may not be substituted for an Integrated Rating even where permitted by the vessel's Minimum Safe Manning Certificate.
· The Minimum Catering Benchmark as per clause 29.5 applies to all Vessels.
· A TIR when supernumerary will be paid in accordance with the clause 22.4.
· Where there is an issue raised on the Vessel with the operational manning, the issue will be dealt with in accordance with the Dispute Resolution Procedure.
· The minimum classification will be an IR. A Rating may not be substituted for an IR even where permitted by the Vessel’s safe manning document.
· All Vessels that have more than 4 IRs on board, will have an IR engaged as a CIR.
(b) Non-Propelled MODUs crewing is as follows:
· Tows of less than 24 hours expected duration: 2 x IRs.
· Tows over 24 hours expected duration: 3 x IRs.
· Tows over 48 hours expected duration: 6 x IRs.
86 According to cl 24.4 of the Agreement, where the Tortuga Tide is a Supply  PSV, the minimum number of IRs is four. There is no reference to the requirement for a Chief IR.
87 Distilled from above, the notes to cl 24.4 of the Agreement at cl 24.4(a) relevantly provide:
· Crewing of Vessels will be no less than the Vessel’s Minimum Safe Manning Certificate irrespective of any dispensations or reductions that may otherwise be permitted by law.
· A Rating may not be substituted for an Integrated Rating even where permitted by the vessel’s Minimum Safe Manning Certificate.
· Where there is an issue raised on the Vessel with the operational manning, the issue will be dealt with in accordance with the Dispute Resolution Procedure.
· All Vessels that have more than 4 IRs on board, will have an IR engaged as a CIR.
88 There is no evidence that the Tortuga Tide had more than four IRs onboard, such that the respondent was required to engage one as a Chief IR.
89 Clause 24.5 of the Agreement provides:
Crewing of Vessels in Transit
(a) Notwithstanding anything else in this Agreement, prescribed crewing levels in this Agreement do not apply to Vessels during Transit Voyages and periods Laid Up. The crewing for Vessel during Transit Voyages, and periods Laid Up will be as agreed between the Union and the Employer, however, will be generally based around previous custom and practice.
(b) The catering benchmark will be used to determine catering numbers during Transit Voyages and periods Laid Up.
(c) The Employer shall ensure that all Vessels are crewed with no less than the numbers provided for in the Vessel’s minimum safe manning certificate irrespective of any dispensations or reductions that may otherwise be permitted by law.
90 Clause 3 of the Agreement contains the following definitions:
Laid Up or Lay Up means a vessel that is not on contract, At Sea, underway, or in operation and is held in readiness with a view to obtaining a contract for task.
…
Transit Voyage means a voyage:
· into Australian waters from an overseas port; or
· out of Australian waters to an overseas port; or
· within Australian waters when a Vessel is travelling between work scopes, in different field locations or ports; or
· within Australian waters when a Vessel is travelling to Lay Up in a different location or port.
91 The respondent submitted that cl 24.4 of the Agreement applies to vessels not in transit or laid up, presumably because cl 24.5 of the Agreement provides for the crewing of vessels in transit.
92 The claimant submitted that the Tortuga Tide was sailing outside of Australian waters from 31 January 2024 to 8 February 2024, although as already stated, there was no evidence of where the vessel was during this time. Notably, the claimant’s case is based on the Tortuga Tide sailing outside of Australian waters. The best Ms Hesford could say was that the Tortuga Tide was on contract and operational and she believes that it may have been in Australian waters, but she did not have any details of, in fact, where the vessel was. ts 37  38.

93 The second alleged contravention is that the respondent failed to crew the Tortuga Tide in agreement with the claimant contrary to cl 24.5(a) of the Agreement.
94 In the absence of any other evidence to the contrary, based on the defined terms contained in cl 24.5 of Agreement, the crewing levels in the Agreement do not apply to vessels:
(a) during a voyage into Australian waters from an overseas port;
(b) during a voyage out of Australian waters to an overseas port;
(c) within Australian waters when travelling between work scopes, different field locations or ports;
(d) within Australian waters when travelling not on contract, at sea, underway or in operation and is held in readiness with a view to obtaining a contract; or
(e) not on contract, at sea, underway, or in operation and is held in readiness with a view to obtaining a contract for task.
95 In those circumstances, the crewing levels is to be agreed between the claimant and the respondent, although this agreement is not absolute and is conditional on the crewing levels being generally based on custom and practice.
96 On the evidence, the best that can be said is that the Tortuga Tide was on contract and operational, and it may have been in or out of Australian waters.
97 What the evidence cannot and does not establish is that the Tortuga Tide was on: a voyage into Australian waters from an overseas port; on a voyage out of Australian waters to an overseas port; within Australian waters and travelling between work scopes, etc. It has also never been suggested the Tortuga Tide was laid up.
98 But even if the Tortuga Tide was outside of Australian waters (as suggested in the claimant’s case), then unless it was on a voyage to an overseas port or laid up, cl 24.5(a) of the Agreement does not apply, and there is no obligation on the respondent to agree crewing levels with the claimant.
99 Further and additional to the reasons provided in respect of the first alleged contravention, based on the claimant’s case, the obligation in respect of minimum crewing levels under cl 24.5(c) of the Agreement applies to the Tortuga Tide if it is outside of Australian waters on a voyage to an overseas port or laid up. The evidence does not establish this to have been the case.
100 Therefore, the claimant has not proven that the respondent breached cl 24.5(a) of the Agreement as it relates to a failure by the respondent to agree crewing levels with the claimant on the Tortuga Tide for the period between 31 January 2024 to 8 February 2024. If the claimant cannot establish, and indeed it has not established, a breach of cl 24.5(a) of the Agreement, then there is no contravention of s 50 of the FWA.
101 Further, the claimant has not proven that the respondent breached cl 24.5(c) of the Agreement at as it relates to the minimum crewing level referred to in the First Tortuga Tide Certificate on the Tortuga Tide for the period 31 January 2024 to 8 February 2024. If the claimant cannot establish, and indeed it has not established, a breach of cl 24.5(c) of the Agreement, then there is no contravention of s 50 of the FWA.
Outcome
102 Save for the respondent’s admitted contravention of s 50 of the FWA, the remainder of the Claim is dismissed.
103 I will hear from the parties in respect of programming the respondent’s admitted contravention for the application of the imposition of a civil pecuniary penalty.





D. SCADDAN
INDUSTRIAL MAGISTRATE




SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia Under the Fair Work Act 2009 (Cth)
Jurisdiction
[1] An employee, an employee organization 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, 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 jurisdiction of the IMC under the FWA is primarily defined by three provisions:
(1) Section 539 of the FWA identifies the civil remedy provisions of the FWA which may be the subject of an application to an eligible state or territory court;
(2) Section 545(3) of the FWA describe the criteria for an eligible state or territory court to make an order for an employer to pay an amount to an employee upon the contravention of a civil remedy provision; and
(3) Section 546(1) of the FWA provides for the making of a pecuniary penalty order upon the court being satisfied of a contravention of a civil remedy provision.
[5] Section 539 of the FWA identifies, from among the several civil remedy provisions of the FWA, the particular civil remedy provisions for which application may be made to an eligible state or territory court ‘for orders in relation to a contravention or proposed contravention of the provision’. The provision also identifies, for each civil remedy provision, the person with standing to make application to the relevant court and, expressed in penalty units, the maximum penalty for a contravention.
[6] The civil penalty provisions identified in s 539 of the FWA include:
· Section 50 – contravening a term of an enterprise agreement.
[7] Section 12 of the FWA defines ‘fair work instrument’ to, relevantly, mean at (b) an enterprise agreement.
[8] An obligation upon an ‘employer’ 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 12, s 14, s 42, s 47. A NES entitlement of an employee 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 13, s 42, s 47.
Contravention
[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 or a fair work instrument (emphasis added): FWA s 545(3)(a).
[10] The civil penalty provisions identified in s 539 of the FWA includes the provisions set out in pt 2 - 9 of the FWA: FWA s 323(1), s 539.
[11] 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).
· The imposition of a pecuniary penalty that the court considers is appropriate: FWA s 546(1).
[12] In contrast to the powers of the Federal Court and the Federal Circuit and Family Court of Australia, 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
[13] Relevant to the claim, 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.
[14] In the context of an allegation of the breach of a civil penalty provision of the FWA 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].
[15] Where in this decision it is stated that a finding has been made, the finding is made on the balance of probabilities. Where it is stated that a finding has not been made or cannot be made, then no finding can be made on the balance of probabilities.
Practice and Procedure of the Industrial Magistrates Court of Western Australia
[16] Subject to the provisions of the FWA, the procedure of the IMC relevant to claims under the FWA is contained in the IMC Regulations.
[17] Section 551 of the FWA provides that ‘a court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention’. It has been held that the effect of the provision is that an ‘eligible State or Territory court’ is required to apply the rules of evidence found in the common law and relevant state legislation when a claim concerns the contravention of a civil remedy provision of the FWA: Gayle Balding, Workplace Ombudsman v Liquid Engineering 2003 Pty Ltd [2008] WAIRC 350; (2008) 88 WAIG 626; Cuzzin Pty Ltd v Grnja [2014] SAIRC 36, [14]. In Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72, [94] - [108] White J (with whom Mortimer and Bromwich JJ agreed) undertook a comprehensive analysis of the issue in the context of contravention proceedings before a state court of South Australia, the former Industrial Relations Court of South Australia.
[18] In a schedule to the judgment in Stagnitta v Bechtel Construction (Australia) Pty Ltd [2018] WAIRC 886; (2018) 98 WAIG 1410, the IMC gave reasons for concluding that the law of evidence applied by a state court of general jurisdiction when exercising jurisdiction in non-criminal matters, including the Evidence Act 1906 (WA), was to be applied by the IMC when determining a claim alleging the contravention of a civil remedy provision of the FWA and seeking the imposition of a penalty.


SCHEDULE II: Construction of Industrial Instruments
[19] 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; 97 WAIG 1595 [21] - [23].
[20] 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.
[21] 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)

SCHEDULE III: Agreed Documents 2 and 3 – Tortuga Tide Minimum Manning Certificates