C2002/624, Transcript of Proceedings [2002] AIRCTrans 3073 (9 August 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMPTON

C2002/624
C2002/625
AG2002/2801

APPLICATION TO SET ASIDE
AN AWARD

Application under section 113(1) of
the Act to set aside the Ports Corp
South Australia Port Services Award 1999

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by the Flinders Ports Pty Ltd
and Others for an award

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Flinders Ports Pty Ltd and Others for
certification of the Flinders Ports
Enterprise Agreement 2002-2005

ADELAIDE

10.00 AM, FRIDAY, 26 JULY 2002

PN1

THE DEPUTY PRESIDENT: Yes, please be seated. Yes, the Commission has before it three applications. One being application pursuant to section 113(1) of the Act to set aside an award, the second an application pursuant to section 111(1)(b) to make an award by the consent of the parties and lastly an application pursuant to 170LJ an agreement for certification. With the consent of the parties I propose to deal with all three applications together. I will take the appearances.

PN2

MR M. FLEMING: Good morning, Deputy President, I am secretary of the Australian Maritime Officers Union and I am also the director of the Port Services Division of the Union. I represent the AMOU in each of the matters today.

PN3

THE DEPUTY PRESIDENT: Good, thank you, Mr Fleming.

PN4

MR P. CHEERS: Deputy President, I am General Manager of Human Resources of Flinders Ports and I am representing Flinders Ports in the Commission today.

PN5

THE DEPUTY PRESIDENT: Mr Cheers. Perhaps I should indicate that the Commission has this morning received correspondence from the Maritime Union of Australia and in particular from Joanne White the national legal officer. The thrust of that correspondence being that they seek an opportunity - a further opportunity to put or to confirm their position in writing prior to the Commission determining any of the three applications. Perhaps Mr Fleming, you might start by outlining your position generally on how the Commission should deal with these matters.

PN6

MR FLEMING: Well, Mr Deputy President, at 7 minutes past 7 last night my office in Sydney received this fax from the MUA and so therefore we only became aware of it at the opening of our office hours at around 8.30 this morning.

PN7

THE DEPUTY PRESIDENT: Yes.

PN8

MR FLEMING: So I intend to deal with what is contained in the letter as part of our submissions. We wish the matters to proceed to a conclusion and I wish to put submissions before you hopefully which are helpful in the Commission forming some view as to how these matters can be concluded with the interests of all parties being taken into account.

PN9

THE DEPUTY PRESIDENT: Very well.

PN10

MR FLEMING: At the same time, as the Commission would understand, my primary interest is to represent the interests of the Australian Maritime Officers Union and its members. We intend to make sure that their interests are not prejudiced by the actions of others in these proceedings. Sir, the story is this, the South Australian Government, about two years ago, announced that it intended to proceed into a sale process for an entity known as the South Australian Ports Corporation.

PN11

As a result of the Government announcing that, we conferred with both the Government and with our employer, who of course was the South Australian Ports Corporation, and we determined that as their appeared that in the near future there appeared about to be fundamental and significant change amongst many other things, what we would do, we would enter into an agreement - an enterprise agreement which would be certified in this Commission which would preserve and protect the employment interests of the staff during the period that the Government intended that the sale process take place.

PN12

As a result, a one year agreement was entered into between the South Australian Ports Corporation, the Maritime Union of Australia and the Australian Maritime Officers Union and that agreement in this Commission is known as the Ports Corporation South Australia Enterprise Bargaining Agreement 2001-2002. That agreement extended the life from most matters of the previous agreement and came in force from 10 October 2001 and had a nominal life until 30 June 2002.

PN13

Now, during that period of time between October 2001 and 30 June 2002 the South Australian Government concluded its sale process and completed a contract of sale with a company known as Flinders Ports Pty Limited, and that was done earlier this year. As part of the sale process and agreements between the two Maritime Unions and the Government, the conditions of employment for the staff of what was the South Australian Ports Corporation transferred and was transmitted to Flinders Ports Pty Limited.

PN14

I repeat, this was in the period of the life of the enterprise agreement between October 2001 and 30 June 2002. So by about April, I think, would be right. By about April this year 2002, well before the nominal expiry of the previous agreement and after the sale had been concluded and the new employer was in place, the two Maritime Unions approached the new employer to commence negotiations to renew the employment arrangements for the staff of what was now the staff of Flinders Ports Corporation.

PN15

So from about April onwards, until about three weeks ago, there was extensive negotiations consultations, report backs, discussions, meetings, exchanges of documents, drafting of proposed awards and agreements between the Maritime Union of Australia, the Australian Maritime Officers Union and the Flinders Ports Pty Limited. Now, one of the issues that arose in the negotiations was this, it became abundantly clear that with the commencement of the employment of the staff by Flinders Ports Pty Limited, the previous award arrangements that applied to a significant number of the staff were no longer relevant.

PN16

Therefore, there was a need to look at and review and complete a new minimum standards award which could then apply to all staff and underpin any new proposed enterprise agreement between the Maritime Unions and Flinders Ports Pty Limited. The fundamental reason for that was the previous award arrangements were that for certain members of the staff, in particular the maritime employees, most of whom are members of the AMOU and MUA, there was an award in existence in this Commission called the South Australian - sorry, the Ports Services - I beg your pardon, called the Ports Corp South Australia Ports Services Award 1999.

PN17

An award that went through the award simplification process, is relevant, but in its term only applied to certain groupings of the staff of Flinders Ports Pty Limited. The rest of the staff, and in particular those staff described as marine pilots, professional, technical and administrative employees, their award arrangements were found in awards of the South Australian Industrial Relations Commission that applied generally to the public service.

PN18

So the picture we had in front of us was we had the Port Services Award and the awards that applied to the public service but Ports Corp no longer existed. Flinders Ports was now in existence as a private company. The question in front of us from April onwards was: What do we need to do, if anything, about the Award position? So it was generally agreed by all parties that we would commence discussions to consolidate everything into one single award.

PN19

As a result, all parties were involved in an extensive process of drafting negotiating, discussing and concluding a document which is part of your papers today known as the Flinders Ports Award 2002. Now it is a matter of fact that we were all involved in that in those discussions in that process over a period of months. Nobody was excluded, documents in detail were exchanged on many occasions, many meetings were held, and they were held with both the AMOU and the MUA and the company.

PN20

On or about 20th or 21st June at meetings attended by all of the parties, it was concluded that there was a document in front of us titled the Flinders Ports Award 2002 and there was in front of us a document known as the Flinders Ports Enterprise Agreement 2002. It was generally discussed that those two documents could then proceed into the formal decision making process of both the company and the unions.

PN21

This is about, and I can be very accurate about this, this was on or about 20th or 21st June. Now, shortly after that day - those days, I know, as a matter of record, that the company organised a meeting between itself and the Maritime Union of Australia to go through in some detail with the officials of the union and the employee delegates the two documents that were on the table, the proposed Flinders Ports Award and the proposed Flinders Ports Enterprise Agreement.

PN22

Now, as a result of all of that, both unions then proceeded into the decision-making process and so did the company. As I understand from the company, the proposed Flinders Ports Award and the proposed Flinders Ports Enterprise Agreement was placed before the Board of Directors of Flinders Ports Pty Limited. Both unions were informed that the Board of Directors had considered the documents and were prepared to agree to them.

PN23

So this is - these are days just after 21 June. Now, for the union's part, the unions then proceeded into a report back decision making process and they are different decision making processes in each of the two unions. In respect of my union, the Australian Maritime Officers Union, an extensive consultation process occurred whee the proposed award was circulated - the proposed enterprise agreement was circulated.

PN24

The company also made available company management persons to explain the details to the staff, members of the AMOU and others, and we then had an independent person conduct a secret postal ballot. The result of that was that the overwhelming majority of members of the Australian Maritime Officers Union approved the document known as the Flinders Ports Enterprise Agreement 2002-2005 with the clear knowledge that there would also be an application for the making of an award known as the Flinders Ports Award 2002.

PN25

Now, we are also aware because we have been told directly from officials of the Maritime Union of Australia, that the MUA conducted an extensive consultation of report back process and we were told, and we understand that the company was told, that as a result of that consultation process the MUA and its members, had approved, decided, made decisions to approve the Flinders Ports Enterprise Agreements 2002-2005.

PN26

Again with the knowledge that at least from 21 June onwards that there was also an intention of the two unions and the company to have an award made known as the Flinders Ports Award 2002. Now, as a result of all of that, applications were then made to this Commission to conclude there had been extensive process with everybody involved. As a result, applications were made which are before you today, for the cancellation or rescinding of the current award which is the Ports Corp South Australia Ports Services Award 1999.

PN27

Then an application was made for the making by consent of a new award which is the Flinders Ports Award 2002, and as a result of that, an application was made to have the Commission consider certifying an enterprise agreement known as the Flinders Ports Enterprise Agreement 2002-2005. Now, apparently, and this comes out to some extent in the letter that you have referred to in the MUA that was received by the Commission that we received at 7 o'clock last night.

PN28

Apparently, there is some confusion within the various parts of the MUA about the proposed award document. Now, as I generally understand it, the national officers, that is the industrial officers, have said to me on Monday of this week that they had only just received the documents and that they were starting a process of looking at them. Now that is the story as fairly and as accurately as I can inform the Commission about.

PN29

Now, the position of the Australian Maritime Officers Union is this that we need to protect the interests of our members and simply put, we would be prejudiced if the enterprise agreement was made, because that seems to be non-controversial as we understand it - - -

PN30

THE DEPUTY PRESIDENT: Except in relation to that, I don't have any statutory declaration.

PN31

MR FLEMING: No.

PN32

THE DEPUTY PRESIDENT: Nor is the copy of the agreement filed in the Commission signed by the MUA.

PN33

MR FLEMING: Yes, I will get to that.

PN34

THE DEPUTY PRESIDENT: Right.

PN35

MR FLEMING: I am must referring to what - - -

PN36

THE DEPUTY PRESIDENT: In terms of its content.

PN37

MR FLEMING: In terms of its content and also it is approval - - -

PN38

THE DEPUTY PRESIDENT: Yes, it doesn't appear to be controversial.

PN39

MR FLEMING: - - - I have been informed by officials of the union as late as yesterday that the enterprise agreement has been approved and the union is in the process of signing it. Now, obviously you are absolutely accurate, there is no document before you which has been signed by the third party. Now, however, the point I was making, Deputy President, is that without the Flinders Ports Award being made a significant number of the members of the Australian Maritime Officers Union would not have an appropriate and agreed minimum standards award applying to them.

PN40

However, if the Flinders Ports Award was not made and the Port Services Award continued to apply and not rescinded, the MUA would being the opposite position, they would have a minimum standards award, current in this Commission, applying to all of its members and they would have an enterprise agreement sitting on top of it. So one of the points we are making here is, the making of the Flinders Ports Award is a significant and important issue to members of the AMOU.

PN41

THE DEPUTY PRESIDENT: It is obviously part of the package.

PN42

MR FLEMING: Part of the package and it needs to be done to underpin the making of the enterprise agreement. Now, it is just very unfortunate for us and for the company that we are in this position today. Now, the question arises in our mind as to how we can proceed and what submissions we can make to the Commission to protect the interests of our members to capture the agreements we have reached with the company and to not prejudice the rights of anybody else.

PN43

THE DEPUTY PRESIDENT: Yes.

PN44

MR FLEMING: We have come to this conclusion, that we would agree to the adjourning of the application to set aside the Port Services Award. So that matter not proceed any further today in our proposal. How it proceeds in the future we can address that a bit later on, whether it be by written submission or another hearing, but we would consent to that application not proceeding today and be adjourned.

PN45

As to the application of the making of the Flinders Ports Award 2002 it is our view that that matter proceed to the extent that an award is made that has as parties, Flinders Ports Pty Limited and the Australian Maritime Officers Union. Further to that and in line with the letter from Ms White dated 25 July, after the MUA have done whatever they need to do, if they conclude that they wish to be a party to that award, then we would agree that the award be varied to include the MUA as a party.

PN46

That could be done as a step 2 and that, I think, is consistent with the submission Ms White has put to the Commission to us in the letter. So the interests and the rights of the MUA are protected and the interests and the rights of AMOU are protected. Now, if the Commission is mindful to do that, and it is our submission that that be done, then as to the third application, that is the application of the making of the enterprise agreement, we would ask the Commission proceed with that matter today in respect of the Australian Maritime Officers Union and Flinders Ports Pty Limited.

PN47

However, the Commission delay signing any formal orders on that matter pending hearing from the MUA within 7 days as they have asked in their letter. So in respect of the enterprise agreement we proceed, we proceed to deal with the enterprise agreement insofar as it is an enterprise agreement between Flinders Ports and the AMOU but we would support the proposition the Commission not make any order until at least seven days and it hears from the MUA.

PN48

If the MUA at the end of those seven days, which I have strong knowledge to support the view that they would be coming back and saying: Look, we are in a position now to sign the enterprise agreement and we now want to be party to it as it has been filed in the Commission, can the Commission now make an order which also includes us. Now, we would be happy with that too.

PN49

THE DEPUTY PRESIDENT: It seems in relation to the certified agreement the most that I could do on that would be to declare review subject to certain other actions being undertaken and then reserving liberty to apply in the admittedly unlikely event that your expectation does not come about.

PN50

MR FLEMING: Yes, we would be happy with that. We think that that is a sensible approach, your Honour, because it - if in respect of the enterprise agreement it is a matter of needing another seven days to get the ducks lined up on the wall such as signing affidavits, signing the document formally and placing documents before you and before us, we can support that but by that process we are not prejudiced either.

PN51

THE DEPUTY PRESIDENT: No, it just seems to me that unlike an award which although a consent of parties is important, ultimately the Commission makes the award whereas with the certified agreement it is in fact the parties probably effectively including in this case all three parties.

PN52

MR FLEMING: Yes, that is correct.

PN53

THE DEPUTY PRESIDENT: It just doesn't send the - it doesn't seem to be discretion for the Commission to partly certify, so that is why I would suggest the course of action I eluded to a moment ago.

PN54

MR FLEMING: Thank you, your Honour, and we in our submission, support that line of action. To repeat as the Commission is now aware, the reason why we are making a distinction in terms of process between the award and the enterprise agreement is because the award situation is different. The AMOU needs to have some certainty about the award position so that the enterprise agreement can be concluded because of the fact that the previous awards apply to the majority of our members are now redundant.

PN55

THE DEPUTY PRESIDENT: Yes, if not legally, certainly, practically.

PN56

MR FLEMING: Yes, exactly, and we have also had the opportunity of over a number of months to extensively consult with the company and the MUA and we believe we have arrived at a document that all parties have been party to and it has been on the table now for three weeks or so and is pretty close to what we - it is what we want and what the company is prepared to support. So that is why we are making the distinction about how we proceed in terms of the award compared to how we proceed to conclude the enterprise agreement.

PN57

Now, as to the first application, the setting side of the Port Services Award, well that is probably the least critical of the three applications and that can be dealt with at some later stage. We would submit in line with the letter from the MUA and subject to the convenience of the Commission to Flinders Ports that that matter can be dealt with by written submission.

PN58

THE DEPUTY PRESIDENT: So in terms of the strategies, you are now advocating whether the Port Services Award is set aside or not at least in respect of your members, would not make any difference providing a new award is made.

PN59

MR FLEMING: That is correct.

PN60

THE DEPUTY PRESIDENT: In relation to the other union that clearly if the award is not made binding on their members then the retention of the Port Services Award is much more than academic.

PN61

MR FLEMING: Exactly, all their rights are protected because the Port Service Award still exists and it applies to all of their members. Now, it means that there are two awards in place probably for a short period of time but the rights of everybody - - -

PN62

THE DEPUTY PRESIDENT: Yes, it is not ideal, there is no doubt about that - - -

PN63

MR FLEMING: No, it is not.

PN64

THE DEPUTY PRESIDENT: - - - particularly given the spirit and the consensus that has obviously emerged at this point it is a regrettable turn of events, there is no question about that.

PN65

MR FLEMING: I am not going to go any further about what my union thinks about the circumstances we are here today but I can tell you that our members aren't particularly happy about all of this but that is life, but we do want to proceed. If the Commission pleases.

PN66

THE DEPUTY PRESIDENT: Thank you. Mr Cheers.

PN67

MR CHEERS: Thank you, Deputy President, I won't waste the Commission's time, I think Mr Fleming has most eloquently and accurately given the Commission all of the details that have related to all of these issues. It is a result of the finalisation of a sale process, an agreement by all of the parties many months ago that we would proceed down this path.

PN68

I must say that the process that we have been through has been one where all parties have been involved, all of the information has been provided and discussed in relation to the award and also in relation to the agreement where there have been regular information sessions with representatives from both of the unions and also with employees. The dates that Mr Fleming has referred to in the provision of all of that information I must - is accurate.

PN69

From Flinders Ports point of view, while we are disappointed that we are not going to be able to finalise all of these issues here this morning, that we are happy to proceed with the process outlined that Mr Fleming and yourself have discussed in respect of the award and the agreement. If the Commission pleases.

PN70

THE DEPUTY PRESIDENT: Mr Cheers, just in relation to the status of Flinders Ports Pty Limited, do I understand that you accept that Flinders Ports Pty Limited is for present purposes, the successor, assignee or transmittee of the business of the Ports Corporation?

PN71

MR CHEERS: Yes, it is.

PN72

THE DEPUTY PRESIDENT: So that means the findings of dispute upon which the new award is based are also valid findings of dispute in relation to your organisation.

PN73

MR CHEERS: They are.

PN74

THE DEPUTY PRESIDENT: Right, thank you.

PN75

MR FLEMING: Sir, if I can now make a number of points following on from the submissions of Mr Cheers and the points you have made to him, can I place before the Commission a document which we say is an authorisation document in respect of the AMOU in connection with the making of the award.

PN76

THE DEPUTY PRESIDENT: Very well.

PN77

MR FLEMING: Thank you. This document is placed before you, sir, in connection with rule 20(2) of the Act. It is two copies of the same document.

PN78

THE DEPUTY PRESIDENT: Yes.

PN79

MR FLEMING: We understand that rule 20 says:

PN80

Each party of the proposed award by consent ...(reads)... has been approved by the party.

PN81

So we place that before you. Can we have that marked?

PN82

THE DEPUTY PRESIDENT: Yes, that is exhibit A1.

EXHIBIT #A1 AUTHORISATION DOCUMENT IN RESPECT OF THE AMOU IN CONNECTION WITH THE MAKING OF THE AWARD

PN83

MR FLEMING: Sir, I just refer Mr Cheers to the point about dispute findings.

PN84

THE DEPUTY PRESIDENT: Yes.

PN85

MR FLEMING: Can I now make submissions about that to you? May I ask the Commission to turn to the application that is 17 July 2002 for the making of the Flinders Ports Award.

PN86

THE DEPUTY PRESIDENT: I have that.

PN87

MR FLEMING: It is an application made on 17 July and it states:

PN88

This is an application for the making of an award by consent of parties ...(reads)... of the Act and rule 20.

PN89

In paragraph 2 it says:

PN90

The award is to be made in part settlement ...(reads)... and C No. 21084 of 1990.

PN91

Now, it is connection with this paragraph 2, those dispute numbers that I now wish to make submissions about. Sir, if I now can place a document before you which is a copy of a record of findings made by Commissioner Redmond on 8 February 1999. Could I have that document marked, sir, if it is convenient?

PN92

THE DEPUTY PRESIDENT: Yes, it is - yes, I will do that, I will admit that and mark it exhibit A2.

EXHIBIT #A2 COPY OF A RECORD OF FINDINGS MADE BY COMMISSION REDMOND MADE IN SYDNEY ON 8 FEBRUARY 1999

PN93

MR FLEMING: Thank you, sir. So exhibit A2 the AMOU submits is a copy of a record of findings of Commissioner Redmond made in Sydney on 8 February 1999. It says these things:

PN94

1. That there is in existence an industrial dispute within the meaning of the Act. ...(reads)... and the dispute extends beyond the limits of any one state of Australia.

PN95

It is signed by the Commissioner. The record of findings identifies the dispute as C No. 20126 of 1999. That of course is referred to in paragraph 2 of the application. Now, attached to that record of finding, sir, is a copy, we say of the transcript of the hearing that led up to the Commissioner recording the findings of an industrial dispute. Now, sir, is the submission of the Australian Maritime Officers' Union that the South Australian Ports Corporation was the entity, or one of them, that was found to be part of that industrial dispute and as a result of the application of the Act, transmission of business provisions of the Act, the South Australian Ports Corporation can now be replaced by Flinders Ports Proprietary Limited, that is our submission.

PN96

Therefore we submit that it is appropriate that should the Commission proceed into the making of the Flinders Ports Award 2002 in respect of the Maritime Officers Union, it makes that award in part settlement of the industrial dispute that was found by Commissioner Redmond on 8 February 1999, in dispute identified as C20126 of 1999. Now, sir, In paragraph 2 of the application it also says - identifies another dispute number which is C21084 of 1990 and if I can now place another document before you.

PN97

THE DEPUTY PRESIDENT: Thank you.

PN98

MR FLEMING: And have this document also marked if the Commissioner pleases.

EXHIBIT #A3 DECISION OF COMMISSIONER WILKS MADE IN SYDNEY ON 18 FEBRUARY 1999

PN99

MR FLEMING: Sir, exhibit A3 is a decision of Commissioner Wilks of this Commission made in Sydney on 18 February 1999 and it was in connection with the South Australian Government Port Services Award 1992 and the decision in summary says that the Commission pursuant to item 51 of part 2 of schedule 5 of the Act reviewed that award and then proceeded to make an award known as the Ports Corp Ports Services Award 1999. Now, the decision identifies that the dispute that under-pinned the South Australian Government Port Services Award 1992 and therefore the dispute that under-pinned the Ports Corp South Australia Port Services Award 1999 was dispute C21084 of 1990.

PN100

So, sir, I place all this information before you so that not only can the Commission be informed about our application for the making of the Flinders Ports Award but also if the Commission accepts our submission so the Commission can make that award in part settlement of two industrial disputes.

PN101

THE DEPUTY PRESIDENT: Perhaps, Mr Fleming, I should also indicate that as a matter of abundant caution I have prior to the proceedings, secured the '99 dispute finding file and in that context I have also read and considered the ambit log of claims in the context of the dispute finding which you have now correctly confirmed for the record. I have done so of course with the Commissioners be satisfied that the making of the award would be within the ambit created by the dispute and no doubt, true to form that is not yet an issue.

PN102

MR FLEMING: That is true and that is very much appreciated, sir, so thank you for that. Can I now conclude this part of our submission by putting in summary this, that the application for the making of the Flinders Ports Award 2002 identifies in paragraph 2 that the award is make in part settlement of the following industrial disputes. See numbers 20126 of 1999 of which the Australian Maritime Officers' Union is a party to and so is Flinders Ports Proprietary Limited and also part settlement of 21084 of 1990 which we submit Flinders Ports is a successor party to that dispute and so is the Maritime Union of Australia and so is the Maritime Officers' Union.

PN103

Sir, I have nothing further to put to the Commission, not in connection with the making of the award. In terms of the making of the - - -

PN104

THE DEPUTY PRESIDENT: So just in relation to the award?

PN105

MR FLEMING: Yes.

PN106

THE DEPUTY PRESIDENT: If the Commission were to adopt your proposed course of action - - -

PN107

MR FLEMING: Yes.

PN108

THE DEPUTY PRESIDENT: - - - what date of operation are you seeking for the award?

PN109

MR FLEMING: Today, and the reason for that being that the award be made prior to the Commission if it was of a mind to do so making the Enterprise Agreement in at least 7 days time.

PN110

THE DEPUTY PRESIDENT: I understand.

PN111

MR FLEMING: Thank you. Now, sir, there is one point we also - whilst I'm on my feet, wish to make in connection with the Enterprise Agreement and that is the question of who the employer is, because that was a matter discussed between the parties and if I can now place two documents as one exhibit before the Commission - - -

PN112

THE DEPUTY PRESIDENT: Certainly.

PN113

MR FLEMING: - - - in connection with that. I ask this for this to be admitted as an exhibit and the exhibit would be in two parts. It would be a letter from the Australian Maritime Officers' Union dated Monday 3 June 2002 to the Chief Executive Officer of Flinders Ports in connection with employment contract AMOU members and signed by myself and the second part of the exhibit would be a letter in reply dated 13 June 2002 to me, at the Australian Maritime Officers' Union from the Chief Executive Officer of Flinders Ports Proprietary Limited.

PN114

THE DEPUTY PRESIDENT: Any objection to that course of action?

PN115

MR CHEERS: No, Deputy President, no objection.

PN116

THE DEPUTY PRESIDENT: All right, then the two letters will be admitted together.

EXHIBIT #A4 TWO LETTERS LETTER FROM AMOU 03/06/2002 AND LETTER FROM CEO FLINDERS PORTS PTY LIMITED

PN117

THE DEPUTY PRESIDENT: I must say I did note the reference to Ages - - -

PN118

MR FLEMING: Adeges.

PN119

THE DEPUTY PRESIDENT: - - - if that is how it is pronounced - Proprietary Limited on one of the lists of correspondence and I was going to ask what the - the role they play in it.

PN120

MR FLEMING: Thank you sir. Sir, as I understand it because I have had the opportunity of being briefed by senior management, there is obviously a corporate structure in place of which Flinders Ports Proprietary Limited is one of the legal entities and it is Flinders Ports Proprietary Limited that is the employer and exhibit A4, amongst other things, identifies that as a fact and it says amongst other things that should that ever be changed then there would be consultation with the staff and with the Australian Maritime Officers' Union and the MUA. Thank you sir. If the Commission pleases.

PN121

THE DEPUTY PRESIDENT: Anything further, Mr Cheers?

PN122

MR CHEERS: No, nothing further to add, Deputy President.

PN123

THE DEPUTY PRESIDENT: Well, gentlemen, what I propose to do is to adjourn briefly to consider how I will deal with the three applications and I will resume and advise you of my decision as soon as possible.

PN124

MR FLEMING: Thank you, sir.

PN125

MR CHEERS: Thank you, sir.

SHORT ADJOURNMENT [10.45am]

RESUMED [11.20am]

PN126

THE DEPUTY PRESIDENT: Yes, thank you gentlemen. Yes, in all the circumstances I have determined to deal with the three applications as follows. Firstly, I will adjourn the application number 2002/624 that is the application to set aside the award. I will in that matter grant liberty to apply generally, however I may depending on what subsequently unfolds, subsequently issue written directions providing for the matter to be dealt with by one way of written submissions with a time frame to be determined by the Commission.

PN127

Secondly, in relation to matter number 2002/625 the application for a new award. I propose to make the award as sought except that it will not be binding upon the MUA or its members unless I receive within 7 days, written confirmation of their apparent support to the award. The formal orders of the Commission will be delayed to permit the MUA to confirm their position. In the event that the MUA does not so consent, I will issue formal orders marking the award but not binding upon them. In that context they would of course be at liberty to apply at any time to be made parties to the award.

PN128

The award as made by the Commission will come into force on and from today's date and will have a normal life of 6 months subject, if necessary to any leave granted to the MUA as foreshadowed earlier. Whilst I may publish reasons for the decision in due course I confirm that in my view this course of action is both necessary and appropriate in all of the circumstances, particularly given the nature of the present award coverage, the different issues and interests evident in that regard and the fact that the MUA were in fact advised that this application, that is both the State and Federal offices were advised that this application on 19 July not 24 July as suggested.

PN129

It is however important that the MUA be given an opportunity to confirm its permission prior to any final orders being made by the Commission. I also indicate in that matter that liberty to apply is granted generally in the event of unforeseen developments. Thirdly, in relation to matter number 2002/2801, the certified agreement. I am not in a position to determine that matter now, it was only lodged on 22 July and as correctly indicated by the MUA, advice was only sent to themselves and other parties formally on 24 July. In any event the application is deficient in that it is not signed by the MUA and there is no statutory declaration from them.

PN130

For reasons outlined in the transcript, I am however prepared to indicate my views on the matter subject to three caveats, those caveats being one, subject to receiving a copy of the agreement signed by all parties. Secondly, subject to receiving a statutory declaration from the MUA as required by the rules and thirdly, with liberty to apply being granted generally, I confirm that I - it would be my intention to issue a certificate approving of the agreement pursuant to the Workplace Relations Act 1996. Subject only to those caveats as outlined earlier, the certificate would be issued immediately without further proceedings and would operate on and from that date and would have a normal life to sit out in the instrument itself.

PN131

Lastly, before adjourning proceedings, I wish to indicate the following. In my view and notwithstanding the administrative hiccups today, it is my view that all parties have dealt with what were no doubt complex and potentially divisive issues arising out of the out sourcing of the Ports Corporation in a mature and constructive manner and I believe the parties should be commended and I look forward, as a Member of the Commission, to a continuation of that form of relationship into the future. So unless there is anything further?

PN132

MR FLEMING: No, thank you, Commissioner.

PN133

MR CHEERS: Thank you, Commissioner.

PN134

THE DEPUTY PRESIDENT: The Commission will be adjourned.

ADJOURNED INDEFINITELY [11.23am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 AUTHORISATION DOCUMENT IN RESPECT OF THE AMOU IN CONNECTION WITH THE MAKING OF THE AWARD PN83
EXHIBIT #A2 COPY OF A RECORD OF FINDINGS MADE BY COMMISSION REDMOND MADE IN SYDNEY ON 8 FEBRUARY 1999 PN93
EXHIBIT #A3 DECISION OF COMMISSIONER WILKS MADE IN SYDNEY ON 18 FEBRUARY 1999 PN99
EXHIBIT #A4 TWO LETTERS LETTER FROM AMOU 03/06/2002 AND LETTER FROM CEO FLINDERS PORTS PTY LIMITED PN117