Fair Work Ombudsman v Transpetrol TM AS [2019] FCA 400

FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Transpetrol TM AS [2019] FCA 400 File number: NSD 2042 of 2016

Judge: RARES J

Date of judgment: 26 March 2019

Catchwords: INDUSTRIAL LAW – where foreign employer of crew of vessel engaged in coastal trading admitted contraventions of ss 45 and 293 of Fair Work Act 2009 (Cth) by underpaying crew members under an award or the National Minimum Wage Order 2014 – where s 33(3) of Act and reg 1.15E of Fair Work Regulations 2009 (Cth) extended application of Act to vessel sailing in Australia's exclusive economic zone and waters above continental shelf under a temporary licence issued under Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) – where purpose of that extension to make cost of employing crew of vessel under temporary licence comparable to that of vessel of general licence holder for some part of voyage – where employer complied with obligations to pay crew under Maritime Labour Convention, employment and collective bargaining agreements as required by law in crew member's domicile – where employer cooperated with Ombudsman and paid crew full amount of alleged underpayment – where Court found alleged underpayment greater than sum actually due – where employer bound to pay crew and allocate payments in accordance with Maritime Labour Convention and laws of crew member's domicile – where Convention and crew employment and collective bargaining agreements and foreign law require particular allocations in total pay different to those under Fair Work Act 2009 (Cth) – where employer had to comply with Convention, agreements and foreign law to maintain maritime labour certificate for vessel as required by Marine Order 11 (Living and working conditions on vessels) 2013 and "blue certificate" for vessel as required by International Transport Workers' Federation – whether civil pecuniary penalties should be imposed INDUSTRIAL LAW – whether employer entitled to set off top up payments against overall underpayment of wages – where employer paid top up amounts to employee to ensure compliance with Maritime Labour Convention and maintain "blue certificate" – where top up amounts achieved common wage scale for employees of same rank and seniority ADMIRALTY – nature of and differences between demise and time charters – where employer was a demise charterer and time chartered foreign flagged ship – where time charterer sub-chartered ship to sub-charterers – where sub-charterer holder of a temporary licence under Div 2 of Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) – application of Fair Work Act 2009 (Cth) to a "temporary licensed ship" in Australia's exclusive economic zone and waters above the continental shelf (s 33(3) of Fair Work Act 2009 (Cth), reg 1.15E(1)(c) of Fair Work Regulations 2009 (Cth)) – where sub-charterer not inform or required to inform owner or demise charterer that vessel or voyage under temporary licence held by sub-charterer – where consequence of a voyage obliged employer of vessel's crew to pay wages in accordance with Fair Work Act 2009 (Cth)