employed on board ships and that "dependent services” means only shipping or other vessel
services such as tugs, lighters and dredges. “Dependent services” must be services whose
existence depends on the existence of the Mercantile Marine.”[89]
[79] The AMOU alleges that the Deputy President erred by not addressing the
service that the Prelude provides, operating effectively as an offshore terminal
facility with responsibility for berthing LNG tankers and loading them with a
commodity. In this way, the AMOU submits, the Prelude operates in the same
manner as a terminal would at a port on the shore, in the sense as discussed in
MSB NSW. It says that Mr Sticpewich performed the role of oversight of those
operations, with responsibility for employees who are engaged in loading and
unloading operations, which is comparable to the role performed by port workers.
[80] The AMOU’s position is that the Deputy President should have found that the
loading of the LNG tankers which had berthed with the Prelude was a substantial
part of its operations. It says that the Prelude is not simply engaged in extraction
and offloading of the raw product. Rather, the AMOU submits that the Prelude is
engaged in supplying ships with the finished product for transport to market, as
the Deputy President found at [28] of the decision.
[81] The AMOU contends that the Deputy President’s reasons demonstrate that
there has not been an understanding of the evidence and the analogy to a mine at
[104] of the decision bears this out. It submits that whilst the mine might
ultimately extract the commodity, which is transported by ship, it does not provide
any service to the ships themselves. By contrast, the Prelude is directly responsible
for berthing the LNG tankers and loading them with the commodity. That is the
service provided to the Merchant Marine and which makes the Prelude a
“dependant service.”[90]
[82] In support of its position, the AMOU relies upon the evidence of Mr Kidd,
who accepted in the proceedings before the Deputy President that an LNG terminal
is similar to a port for a container ship.[91] Mr Kidd is employed by Shell as an
Offshore Installation Manager, being the most senior person on the Prelude.[92]
[83] Shell’s position is that there is no error in the Deputy President’s conclusion.
It says that the Prelude does not provide a “dependent service” to the Mercantile
Marine in the sense understood in Fisheries (that is, an appurtenance, a
subordinate part, or a dependency). Accordingly, the Deputy President did not err
in concluding that Mr Sticpewich was not a member of a “dependent service”
within the meaning of the Eligibility Rule. Further, Shell submits that the AMOU’s
reliance upon the decision in MSB NSW concerning port workers fails for six
reasons:
(a) the AMOU’s construction would invert the nature of the relationship
between the respondent and its transport service partners. Insofar as the
analysis of a single member in MSB NSW supports that inversion, it extends
beyond the construction of “dependent service” adopted by Fisheries and the
Full Bench’s approach in Fisheries should be preferred;
(b) there is nothing to suggest that the offtake function is a “service” divisible
from the Prelude’s gas processing operations. It is simply an essential part of
the Prelude’s primary function;
(c) there is no evidence before the Commission to suggest that the Prelude’s
offtake function was provided to the Mercantile Marine on any commercial
basis (such as might demonstrate the provision of a “service”). Shell cannot
sensibly be said to be “part of the service industry” to its transport partners,
which is the approach adopted in Fisheries;
(d) the AMOU’s construction fails on a contextual analysis. The array of
industries and occupations set out in Rule 6 Part 2(a) which concerns the
stevedoring industry, would be captured by the definition of “dependent
services” in the Eligibility Rule. It follows, on this construction, that the term
“dependent services” in the Eligibility Rule must be given some narrower
construction;
(e) even if the Prelude’s offtake function were capable in isolation of meeting