Fair Work Ombudsman v Pocomwell Ltd [2013] FCA 250; [2013] FCA 1139

• Author: R. E. Lindsay
• Position: Barrister-at-Law. The author was counsel for the First and Second Respondents in the Pocomwell litigation. He thanks Graham McCorry for his aid in preparing this article
• Pages: 75-82

(2015) 29 ANZ Mar LJ

75

Fair Work Ombudsman v Pocomwell Ltd (No 1) [2013] FCA 250; Fair

Work Ombudsman v Pocomwell & Others (No 2) [2013] FCA 1139

R. E. Lindsay

*

It is estimated that the Philippines provides around 460 000 seafarers on foreign flagged ships around the

world.1 There are more Filipino seafarers than any other nationality in the world,2 and it is believed that

some 20% to 30% of the world’s seafarers are Filipino. A recent case explored the liability of employers for

wage conditions of Filipino seafarers within Australia’s Exclusive Economic Zone (EEZ).

Facts

Four of these seafarers, who carried out painting duties, were employed aboard a Chinese flagged oil rig, the

Nan Hai VI, which is a semi-submersible mobile offshore drilling unit (MODU) and flies a Peoples Republic

of China flag. The other oil rig upon which the painters briefly worked, flew a Singapore flag. The operator

of the oil rigs was Maersk Drilling Australia Pty Limited. It was alleged by the Fair Work Ombudsman

(FWO) that the four Respondents, in employing the painters on these oil rigs at Filipino rates, had underpaid

these workers in relation to Australian Award rates laid do wn under the Fair Work Act 2009 (Cth). 3

The First Respondent was the nominal employer, Pocomwell Limited, which was registered in Hong Kong

and had entered into written contracts with the seaman. The Second Respondent was the agent of

Pocomwell Limited and had arranged for their recruitment on employment contracts with Pocomwell

Limited, pursuant to an Agreement in writing made with the Third Respondent, Survey Spec Pty Limited,

and its chief executive officer, Thomas Civiello, who was the Fourth Respondent. The Second Respondent,

Supply Oilfield and Marine Personnel Services Inc (SOMPS) was a registered Filipino company and would

receive USD 92.00 a day for providing the painters. Pursuant to an Agreement made between March and

July 2009, Maersk Drilling Australia Pty Limited, the pleaded operator of the Nan Hai VI, agre ed to pay

Survey Spec some AUD 400 per day for each of the employees.4

It was alleged that from 1 January 2010 until 1 March 2011 the painters were not paid entitlements derived

from the Fair Work Act 2009 (Cth) and authorised under the relevant Australian award, the Hydrocarbons

Industry (Upstream) Award. The MODUs were in th e EEZ beyond Australia’s territorial waters at all

relevant times. The central issue, upon w hich the case was decided, was whether Australia had jurisdiction

to assert breaches of the Fair Work Act. This question arose in three ways. First, whether jurisdiction for

ascertaining and deciding the appropriate levels of wage remuneration in these circumstances rested with the

Philippines, the flag state, or with Australia. Secondly, if it was appropriate for Australia to exercise

jurisdiction in the EEZ in these circumstance s, were the rigs ‘fixed platforms’ to which section 33 of the

Fair Work Act would apply in the EEZ. Thirdly, if the MODUs were not ‘fixed platform s’, whether

regulations mad e by Julia Gillard, when she was Minister for Employment, under regulation 1.15E of the

Fair Work Regulations 2009 (Cth), that make majority Australian resident crewed ships subject to the

penalty provisions under the Act, applied in the circumstances. This raised the issue of how the Fair Work

Act and its regulations were to be construed in light of Australia’s international law obligations and the

concurrent jurisdiction of other States3b.5

The painters on the Nan Hai VI were all under written contracts, prescribed by the Philippines Overseas

Employment Administration (POEA), which is an agency attached to the Philippines Department of Labour

and Employment (DO LE). The licensing of overseas principals, and manning agents, such as the First and

Second Respondents, was and is subject to a stringent statutory contractual regime imposed by the

Philippines government since seafaring is an important part of the nation’s lifeblood. Pocomwell and

SOMPS were accredited to recruit and deploy Filipino seafarers, and these painters were subject to

* Barrister-at-Law. The author was counsel for the First and Second Respondents in the Pocomwell litigation. He thanks Graham McCorry

for his aid in preparing this article

1 Filipino seamen, Wikipedia, http://en.wikipedia.org/wiki/Filipino_seamen fn 3.

2 Wikipedia, above n 1, fn 4.

3 Fair Work Ombudsman v Pocomwell Ltd (No 1) [2013] FCA 250 (25 March 2013) (‘Pocomwell (No 1)’); Fair Work Ombudsman v

Pocomwell & Others (No 2) [2013] FCA 1139 (1 November 2013) (‘Pocomwell (No 2)’).

4 Pocomwell (No 1) [2013] FCA 250 (25 March 2013) [10], [16]-[29].

5 Pocomwell (No 2) [2013] FCA 1139 (1 November 2013) [1]-[7]. In addition, this recitation o f the facts makes use of uncontested facts that

was contained within the documentary evidence at trial.