C2002/5629, Transcript of Proceedings [2002] AIRCTrans 5139 (19 December 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2002/5629

THE AUSTRALIAN MARITIME OFFICERS' UNION

and

INTERCONTINENTAL SHIP MANAGEMENT PTY LIMITED

Application under section 170LW of the Act
for settlement of dispute re Intercontinental
Ship Management/Australian Maritime Officers
Union Seagoing Enterprise Agreement 2002

SYDNEY

11.29 AM, THURSDAY, 5 DECEMBER 2002

Adjourned sine die

PN1

THE COMMISSIONER: Yes, can I have the appearances please.

PN2

MR J. WYDELL: If the Commission pleases I appear as solicitor in the employ of The Australian Maritime Officers' Union.

PN3

MR D. SLOAN: Commissioner, I appear as solicitor for the respondent.

PN4

THE COMMISSIONER: Yes, Mr Wydell, what is the issue?

PN5

MR WYDELL: Thank you, sir. On approximately 15 August 2002 the Australian Industrial Relations Commission in accordance with section 170LT of the Workplace Relations Act certified a written agreement known as the Intercontinental Ship Management Australian Maritime Officers' Union Seagoing Enterprise Agreement of 2002. Section 170LT(8) of the Workplace Relations Act requires that:

PN6

Such agreements must include procedures from preventing and settling disputes between the employer and the employees whose employment will be subject to the agreement about matters arising under the agreement.

PN7

Section 170LW states that:

PN8

Procedures in a certified agreement for preventing and settling disputes between the employer and employees whose employment will be subject to the agreement, may if the Commission so approves, empower the Commission to settle disputes over the application of the agreement.

PN9

On or about 15 November 2002 pursuant to rule 66 of the Australian Industrial Relations Commission Rules notice was given by the Australian Maritime Officers' Union to the Commission under clause 12 of the Dispute Settlement Procedure that the Intercontinental Ship Management/AMOU Seagoing Enterprise Agreement 2002 of a number of matters in dispute. These matters relate to primarily this.

PN10

Non observance of a contract arrangement or understanding whereby one of our members who was graded a second mate was to receive whenever he acted up in capacity of a first mate, his service and PDR allowances as a second mate, in addition to his base salary of the first mate. So what we are saying is, he is officially a second mate, he is acting up as a first mate and whilst acting up as a first mate he was entitled to receive his second mates service and PDR allowance.

PN11

Just to particularise it a bit further. At all material times our member held the rank of a second mate. From time to time and as required by ISM our member acted up in the higher rank of a first mate. As graded a second mate our member was entitled to receive the base salary of the second mate in addition to service and PDR allowances. Our member was entitled to receive a service allowance based on his eight years service in the rank of a second mate.

PN12

I am instructed that there is little difference between the remuneration our member received as a second mate with eight years service in that rank in addition to his PDR allowance and the base salary as a first mate. I am instructed the difference is about $65 per fortnight. So that is about $30 a week. On the basis that our member would be required to work additional hours and occupy a position of greater responsibility with little increase in remuneration, Steve Bertram, the then personal manager at ISM, approved the payment to our member of his service and PDR allowances as a second mate to be added to the base rate of a first mate whenever our member was acting up in the rank of a first mate.

PN13

Since then another officer in the employ of ISM has seen fit to deduct from the back pay our member was to receive. Upon certification of the current enterprise agreement between the parties these additional allowances paid to our member when he was acting up as a first mate. As a contract arrangement or understanding under which our member was to receive those payments is not contained within the enterprise agreement between the parties.

PN14

The second matter if you like, Commissioner, and they both arise out of the same transaction. Unauthorised deductions from the salary or wages accruing to our member under the Intercontinental Ship Management/AMOU Seagoing Enterprise Agreement for the service and PDR payments pursuant to the arrangement understanding that I alluded to under the first part.

PN15

So what we have, Commissioner, is under the EBA the way the salaries were backdated to a date earlier in the commencement date of the agreement, there was a sum of money accruing to our member as a back pay. What the company has seen fit to do is to set off against that back pay moneys they allege were overpaid to him as a result of this arrangement. They say that there was no such arrangement. We say that there was. It's our position that the moneys owing under that contractual arrangement have been paid. It is further our position that the moneys our member is entitled to upon certification of the EBA have not been paid. Such that the employer has sought to set off against the statutory debt if you like, a contractual debt.

PN16

We say that the employer has no legal entitlement to do that. At this stage that's all I would say.

PN17

THE COMMISSIONER: Yes, thank you, yes, Mr Sloan?

PN18

MR SLOAN: Thank you, Commissioner. Perhaps a bit more by way of background. The enterprise agreement in clause 13.1 makes it clear that when a person is acting up in another role they only receive the base salary for that higher role. They don't receive the PDR or service allowances.

PN19

THE COMMISSIONER: What is PDR?

PN20

MR SLOAN: Performance and development. You will see in the enterprise agreement, Commissioner, that the remuneration structure has three components. There is a base salary that is paid in respect of the position. There is a PDR component, a percentage allowance that is graded depending on a persons rating from sort of satisfactory through competent to outstanding. Over and above that a further percentage allowance depending on years in that position, as you would be aware. As I say clause 13.1 of the enterprise agreement is very clear in that when a person is acting up in a role they only receive the base salary for that higher role for the period that they are acting up. They do not receive the PDR or service allowances for that higher or indeed for their usual role. Just the base salary for the higher position.

PN21

So noting that that is the term of the enterprise agreement, Commissioner, the background is this. That in approximately February or March of this year, ISM in the course of conducting a review of its payroll systems engaged a Timber Line consultant to come in and check out what had been going on. In the course of doing that review it was discovered that a certain number of areas were discovered. One of which was that over a period of time, Adrian Hodgman who is the member of the union in respect of this dispute, had been receiving the PDR and service allowances in respect of his second mate position whenever he acted up as first mate. This had been going on since about 1998.

PN22

As I understand the system, Commissioner, as you would appreciate from the way the enterprise agreement is structured, there are a number of variables that will apply depending upon the individual circumstances of the employee and in what particular position they will acting in a given week or fortnight. I understand that there are a number of boxes that are ticked electronically as it were that will lead to certain consequences.

PN23

What has happened in this case was that it was discovered that while the salary had changed, the base salary had changed whenever Mr Hodgman was acting up as a first mate. The boxes in respect of PDR and Service for his second mate role had not been, if you like, unticked. So whenever he'd been acting up, he'd receive these additional payments. In March of this year, that situation was corrected and the payment of those allowances whenever Mr Hodgman was acting up, the practice of paying those allowance was discontinued, was stopped, and the error rectified.

PN24

As you know, throughout 2001/2002, there were negotiations between the parties in respect of the current EA that you certified on 15 August. It is worth noting that at no time during those negotiations did the union ever raise the suggestion that there was a specific agreement in place in respect of Mr Hodgman that would override clause 13.1. Certainly they didn't seek to amend clause 13.1 in respect of Mr Hodgman or anybody else. Of course after the Enterprise Agreement was certified there was an obligation on the part of ISM to make certain back payments to the employees and in the course of doing that, the decision was taken to deduct from the back payment gross amount, as it were, the amount of the overpayments that had been made to Mr Hodgman.

PN25

Now, it's worth noting at that point, Commissioner, that the deductions that were made related solely to the period for which the back payments were being made. The company did not purport to deduct from that - start again, perhaps. There was a period for which back pay had to be made which was largely August 2002 back to about September 2001. That is the period of time that ISM took. Any overpayments made during that period, they sought to recoup. They did not, at that time, seek to recoup the overpayments from September 2001 back to 1998. Now that was seen as being a convenient way to resolve the dilemma in front of the - - -

PN26

THE COMMISSIONER: Was the overpayment greater or less than the back payment?

PN27

MR SLOAN: Less.

PN28

THE COMMISSIONER: So he still got some back payment?

PN29

MR SLOAN: Yes.

PN30

THE COMMISSIONER: He still got some back payment. What you say is if you'd wanted to you could have given him no back payment and in recompense of the overpayment that might have gone back two or three years and you might even say to me he'd still be short, but anyway not to worry.

PN31

MR SLOAN: Well, I think, I'm just looking for the numbers now, Commissioner. I should point out that at the time the payment, the back payment if you like, the net back payment was made to Mr Hodgman, he did receive a schedule from the company that contained full details of the amount that was paid to him, the deductions that were taken over the course of the period from 9 September 2001 through 25 August 2002. I won't tender it, Commissioner, but it is a fairly detailed schedule.

PN32

As I understand it there was a total of about $1580 or thereabouts deducted from an adjustment to the base rate of just short of $2000. So there was some money going to him. On my instructions, Commissioner, it is relevant for these proceedings if the company wanted to - I'm sorry, I withdraw that. I am instructed that for the period 1998 to September 2001 the amount of the over payments would be in the order of $8000. Now, I note that simply to put in context what the company has done here that they were prepared at that stage to say, well, we'll only focus on this window for which we're making a payment, take the over payments, give the balance to the employee and move on.

PN33

Again, it seemed to make sense. It was, if I can use the vernacular, money for jam, as far as the employee was concerned. It wasn't as if deductions were taken out of his fortnightly pay. So as I say that happened in August 2002 and remembering that the payment of these allowances whenever Mr Hodgman was acting up had been discontinued in March 2002. It wasn't until late October 2002 that the union requested a meeting with ISM and one of the items that they sought to put on the agenda was the question of Mr Hodgman's back pay.

PN34

At the subsequent meeting between ISM and the union, for the first time it was alleged that there was an agreement between Mr Hodgman and Chris Sorensen in fact, the former MD of ISM, that was made during a works committee meeting on 9 April 2001 that whenever Mr Hodgman was acting up he would get these additional allowances. Now, on investigation, the company was able to disprove that by records kept at the meeting both by the employee, the union and Mr Sorensen and having notified the union that the argument raised during their meeting in October was false, we now get the story that sometime before 9 April 2001 there was this agreement with a Steve Bertram, the previous personnel manager that Mr Hodgman would get these allowances.

PN35

Now, in respect of that suggestion, firstly Mr Bertram left in about July 2000 and, as I understand it, nobody at ISM knows where he can be found. It would have been beyond the scope of his authority at any time to enter into an agreement of the sort being alleged by the union in these proceedings. Certainly there is absolutely no record at ISM and there's been no documentary material put to us by the union or Mr Hodgman to support the existence of this alleged agreement. Again, I repeat, that at no time until October or thereabouts of this year has it ever been asserted by Mr Hodgman or the union that he had this particular agreement such as to displace clause 13.1 of the enterprise agreement.

PN36

In fairness though to Mr Hodgman I would point out that at the works committee meeting on 9 April 2001, there was a discussion about the fact that in some instances a person acting up in a role, because of the operation of clause 13.1, in some instances a person acting up in a role might in fact receive less per fortnight than they would receive if they stayed in their permanent role. During the meeting ISM gave an assurance, no, I withdraw that, ISM stated that it would consider on a case by case basis applications for top-up pay by employees who would lose salary if they acted up in a role.

PN37

Now, as I say, we're only talking about top-up pay between what they get as in this case, say, a first mate and what he would receive as a second mate. So it may be that that has given rise to some concerns, but as far as we are concerned, Commissioner, in respect of the first ground of dispute in the notice, we dispute that there was ever such an agreement that Mr Hodgman would receive these allowances when acting up. It is expressly contrary to clause 13.1 of the enterprise agreement and it is not something that the company would or did agree to just in respect of Mr Hodgman or anyone else.

PN38

We say that the money that was recouped was properly ours to recoup as it had been paid under error and was far less than the company could have sought to recoup. So in those circumstances, Commissioner, the company disputes the dispute as it were.

PN39

THE COMMISSIONER: Yes. I don't have a copy of clause 13.1. Yes, I do, sorry.

PN40

MR SLOAN: It may in fact be annexed to the application, but I could be wrong about that.

PN41

THE COMMISSIONER: Yes, Mr Wydell, what do you say about that?

PN42

MR WYDELL: Thank you, Commissioner. I might just point out that under the preceding agreement to the current agreement, there was an anomaly whereby it worked out that a second mate with eight years service in PDR, so let's say he was the top of the line second mate, there was little or no difference between the first mate, although there's a significant difference in the number of hours worked, there's also a significant difference in the tasks and duties performed and also a significant difference in the responsibility, such that the difference was I am instructed $65 a fortnight, some $32 odd a week.

PN43

That anomaly was corrected in the current agreement. I might mention that the current agreement comes into force on 13 August 2002. It is all over by then. The argument is finished. Mr Hodgman was, in fact, promoted and graded to first mate on 30 June 2002, so the current agreement is irrelevant. I might also point out that both the current agreement and the former agreement merely prescribe minimum rates. It is not paid rates. The employer or his officer, delegate, whomever you choose, is free to enter into arrangements on top of that and it happens in every workplace all over the country and none of these things are written down and there is a very good reason for it, as to why these things are never written down.

PN44

As my friend quite rightly points out, this all did, in fact, start in 1998, because that is when the agreement was entered into with Steve Bertram then personnel manager at ISM. So the thing has been going on since 1998. It didn't just happen all of a sudden. As I say, the arrangement had been in place in or about - before the preceding agreement, never mind this agreement. This agreement starts on 13 August. We say that the moneys owed or accruing to Mr Hodgman under the agreement, arrangement or understanding whereby he would get the top-up allowances, if you like, has been settled. That debt is paid. That is a contractual debt.

PN45

The moneys due under the enterprise agreement, however, are a statutory debt. Those moneys accrue to Mr Hodgman by virtue of this agreement, it's trite law to point out. But the company has no entitlement to set off. There is no legal entitlement for them to set off and there is certainly no equitable entitlement.

PN46

THE COMMISSIONER: Mr Wydell, the issue ultimately comes down to enforcement and if push comes to shove you have got probably a strong ground for Mr Hodgman getting back by order of the court, getting back $1900 back money, but what happens when the company exercises its rights before either the court, or possibly the appropriate magistrate in New South Wales - I presume New South Wales, and seeks the payment of $8000? What I am supposed to do in all that? It seems to be in the end - at the moment, if you want my opinion, there is no evidence about this agreement is there, other than his say so? The other side says, well, it would never have happened - - -

PN47

MR WYDELL: We say there is an agreement, they say it is an overpayment. We say that by virtue of the payment of the moneys, is evidence of the agreement. Surely not, things have been going on since 1998 to 30 June 2002 and this is the first they have noticed. I wouldn't believe it.

PN48

THE COMMISSIONER: What did Mr Hodgman do in March when this thing came to an end?

PN49

MR WYDELL: The AMOU didn't get involved with it until the money was deducted from his back pay. Mr Hodgman did make an earlier complaint about some moneys owing to him and ISM fixed it up.

PN50

THE COMMISSIONER: Yes, but I am just saying, in March he ceased receiving the service increment and the PDR and continued to receive the first mate allowance, if he was doing that. He complains to his union when he has something deducted, but if there was an agreement with Mr Bertram or Mr Sorenson then why didn't he jump up and down in March?

PN51

MR WYDELL: I have no idea, Mr Commissioner, the AMOU were not involved then. One wonders, of course, if there was no lump sum back payment coming to Mr Hodgman whether the company would have deducted the money at all. Even so far as the - 1995 was the back pay accruing thing.

PN52

THE COMMISSIONER: I take it that you want the Commission to tell the company that they should do what the current agreement says they should do and that is to pay the money. That's what you would like, isn't it?

PN53

MR WYDELL: All we do is we ask that the company comply with the current agreement and the fact remains that they have no entitlement to set off against whatever entitlement accrues to Mr Hodgman under the current agreement. They have no entitlement to set off against that at all. If the company believes that Mr Hodgman has been overpaid and they dispute that there is some form of an agreement there, then I guess that is another matter, isn't it? Maybe that is a matter to be sorted here or a matter to be sorted in another forum, but I find it amazing that the first discussions I had with ISM were not along the lines of an overpayment, now these discussions take the form of an overpayment.

PN54

THE COMMISSIONER: The issue of the back payment, where does that appear in the agreement?

PN55

MR WYDELL: I take you to clause 13, namely clause 13.2:

PN56

A salary increase will be paid effective 1 September 2001 and the base salaries will be ...

PN57

Now, the salaries were still governed by the preceding agreement at this stage. This agreement had not come into force until 13 August 2002.

PN58

THE COMMISSIONER: Is there an argument that the company's obligation commences on 15 August and whatever arrangement the parties had amongst themselves about 1 September is only their arrangements, it has nothing to do with this certified agreement. What do you say about that?

PN59

MR WYDELL: I dispute that, sir, because unless it is in the current agreement there is no entitlement to it.

PN60

THE COMMISSIONER: When did the old agreement expire?

PN61

MR WYDELL: The old agreement expired on the day it was replaced under section 170LM, an agreement doesn't expire until (1) the nominal expiry date is passed, and (2) until it is replaced with another agreement. This agreement being the replacement agreement, so therefore the preceding agreement ran until a time on 13 August 2000 to when this one took over.

PN62

THE COMMISSIONER: How can an obligation apply under the earlier agreement and then presumably apply under this agreement - I am talking about the obligation to pay before 1 September 2001. How can that all occur?

PN63

MR WYDELL: Well, if we like, wages or salaries accrue on the basis of service. Now, there is no dispute that the employees who are covered by this agreement weren't in the service of the employer during the relevant period of September 2001 through to the date of commencement and we can even go so far as to say that because these things accrue by service if somebody was to commence employment with ISM, let me see, in or around February 2002 and this agreement commenced on 13 August 2002, but, hang on, the salaries are backdated to 1 September 2001, it would be a bit rich to say that for the person who started in February 2002 they also get that pay to September 2001 because, well, there's no entitlement; they weren't working for the company at the time, they weren't accruing service with the company to entitle them to wages back at some former date. So the parties are free to choose.

PN64

THE COMMISSIONER: Well, they are free to choose but I am just saying it's a question of - I mean you have raised the law - I am just saying to you how can the agreement operate any earlier than the date of the agreement. The date says that it will operate from 15 August 2002. How can it apply any earlier than that?

PN65

MR WYDELL: Then it's still an agreement under the general law, sir.

PN66

THE COMMISSIONER: If it's an agreement under the general law it's got nothing to do with the LW process that you're before me on. Mr Hodgman has got rights obviously but I'm just taking a practical view that he's looking down the barrel of another $5500 he might have to cough up if he's wrong on his so-called oral agreement with Mr - I'm not quite sure what his name was - but the man who has disappeared.

PN67

MR WYDELL: If the parties say to themselves between each other that these will be the salaries as per a set date, once that agreement is certified even though the relevant salaries are before the date the agreement commenced then they're still enforceable under the agreement.

PN68

THE COMMISSIONER: I'm not sure. You can have an agreement to pay $50,000 a year for a three year agreement and there are no extra claims. Under your proposal you could enter into another agreement and that agreement would increase rates by $60,000 and backdate it for three years. That would be essentially varying the earlier agreement. It is usual for the Commission to accept that parties come to their own arrangements and there is a contract entered into by employees working on a certain basis, that is when we wrap up this agreement you'll be paid that money back a year or three months or whatever it might be. That's a contractual position and the company would be bound but the Commission notes that and sometimes makes comment about that but nonetheless certifies it from a particular date and it operates from that date.

PN69

MR WYDELL: That's right and that's when the entitlement arises. The entitlement doesn't arise until that agreement commences. If we say the nominal expiry date of the preceding agreement was 30 August 2001 and then we say that that agreement stayed until the new one commenced being this one, being August, the entitlement to these wage increases covering that interim period don't commence until this agreement is certified by the Commission being 13 August. Prior to that there is no entitlement.

PN70

If the parties intend the agreement to commence on the date of certification or on an alternate date then so far as it commences on the date of certification then the entitlement accrues on the date of certification and if they nominate an earlier date then that entitlement arises under the general law and so far as after that upon the date of certification.

PN71

THE COMMISSIONER: Thank you, Mr Wydell. Mr Sloan, do you have anything to add?

PN72

MR SLOAN: I don't think there is much to add to the debate that you just had with Mr Wydell. Our position is as I stated at the outset. There are two matters brought before you today; one is that the ISM has failed to comply with an alleged agreement with Mr Bertram. I do know, and this could be a matter of evidence in any subsequent proceedings, that the date of 1998 that has just been put before as when that agreement was entered into is the first time ever either Mr Hodgman or the AMOU has given a date to that agreement to ISM. Before these proceedings today it's just been a nebulous some time before 9 April 2001 there was this other agreement with Mr Bertram.

PN73

It is, I would suggest, rather convenient for my friend to come before you now and say, well, these later payments started in 1998, well, that must have been when the agreement was, because we haven't had any evidence of that at all from Mr Hodgman or the union before now. In terms of that agreement we say there was no agreement, there could be no agreement, it would have been inconsistent with the previous enterprise agreement and insofar as the second ground of dispute we simply say that we dispute that there's been a breach of the enterprise agreement as alleged.

PN74

THE COMMISSIONER: Mr Sloan, what do you say about the proposition that, look, overpayment or otherwise, that's one problem but there is a clear obligation for you to pay the base salary increase for a second officer to Mr Hodgman effective from 1 September 2001; that's the first thing you do. Now, what you do after that in relation to the other things, well, that's your business, that's for you to decide, but he's got that entitlement and why shouldn't he receive it?

PN75

MR SLOAN: In truth, Commissioner, I would have to say that I think that the enterprise agreement does impose an obligation to make a back payment to Mr Hodgman.

PN76

THE COMMISSIONER: Well then why don't you do that?

PN77

MR SLOAN: What we say, Commissioner, is that we have done that but have taken an expedient course of taking out a measure of these over-payments in settlement of the outstanding debt, a fact which was brought to Mr Hodgman's attention when the payment was made on or about 25 August this year.

PN78

THE COMMISSIONER: Yes, thank you Mr Sloan. Back to you Mr Wydell.

PN79

MR WYDELL: Thank you Mr Commissioner. Just on 1998 it wasn't me who raised 1998. It was friend who raised 1998 and I will just draw your attention to a letter here dated 7/11/02. Now, this letter is addressed to the Crewing Officer of Intercontinental Ship Management Pty Limited and it says, "Dear Judith". I go over the page here and it says:

PN80

As these payments have been paid to me for some time since 1998 ...(reads)... Mr Bertram's manager.

PN81

This was a letter by Adrian Hodgman to Ms Olsson of ISM. So, this is not the first time we have raised 1998. My friend raised it first, I didn't say a word, I remained silent. It is in the letter here to ISM. It says 1998 so I just, you know, I do take a bit of offence to someone saying well look, you know, we have only just conveniently raised it now. That is not quite true, Mr Commissioner.

PN82

THE COMMISSIONER: What do you say the Commission should do?

PN83

MR WYDELL: I guess that largely depends on what my friends would say the Commission should do. I think as a minimum I think the Commission should say to ISM look, fair is fair, the guy is entitled to these moneys under the EBA and they should be paid. Likewise we would be saying that fair is fair, there was an agreement, albeit with persons who are no longer in the employee of ISM but nevertheless an agreement was there. Now, it is not for our member to go behind whatever representations are made to him by the personnel manager of ISM to see whether the representative of ISM has actual implied authority to make the representation. The fact is, we say, that there was an agreement. We say the guy was paid as per the agreement and we say the guy did the work.

PN84

Now, if the guy did the work and obviously he did the work satisfactorily because he has now been graded the First Mate. I guess if the work wasn't satisfactory they wouldn't have seen fit to actually grade him as the First Mate.

PN85

THE COMMISSIONER: So, it is not a question of whether he was doing his job as whether he was paid appropriately or not.

PN86

MR WYDELL: We say he was paid - - -

PN87

THE COMMISSIONER: It is to the credit of the company that they have promoted him so presumably they treat people without worrying about whether they stand up - or you know become a thorn in their side. I don't think that point is neither here nor there.

PN88

MR WYDELL: Yes. Sir, we say that Mr Hodgman has been paid under the first agreement. We say Mr Hodgman has not been paid. The entitlements are accruing to him under the EBA and we say that the company has no legal entitlement to set off what they believe is a debt owed to them because they allege an overpayment, we say there was an arrangement agreement understanding between parties.

PN89

THE COMMISSIONER: How can the Commission do anything without sort of inviting this to go on, but how can it do anything without considering whether or not there was such an agreement, whether it is just the contention of the employee?

PN90

MR WYDELL: It may well be a proper course for the Commission to go for that matter. We certainly have no objection to that. If the Commission needs to satisfy itself that there was or there was not such an agreement then how can we object to that. All we can do is present our member who will say that there was such an agreement. I don't know and I can't foresee what sort of evidence the other side may bring on to say well look we say there was no agreement.

PN91

THE COMMISSIONER: Yes, but in the absence of that material before me what should I do now?

PN92

MR WYDELL: I guess that you can adjourn this matter and await further material. I might add that our member is a seafarer and he lives in Brisbane so by the time he flies down from Brisbane to here on his leave et cetera, et cetera, the whole amount becomes pretty insignificant, doesn't it, by the time he flies down, pay accommodation, fly back. Our logistical problem is that our members are spread out all over the country and there is problems with those sort of things.

PN93

All I can obtain from our member is an affidavit at the best saying that on such and such a time in 1998 there was an agreement between myself and Steve Bertram on behalf of the ISM that I would get this. That's all the evidence in reality that the AMOU can produce. There is no agreement in writing. It is just one of those things. It is like the boss comes up and says if you pack up that truck or put it away or do whatever you do I will give you an extra hour's overtime. There is nothing in writing. The parties work on that basis that, you know, if the boss says he will pay an extra hour's overtime, the guys do the job, everyone gets paid. He gets the job done, everybody is happy.

PN94

I admit that this is, you know, just an isolated incident, one hour's overtime and it has gone on for some period. I just don't see what other evidence the AMOU could produce realistically other than either our client in the box or an affidavit saying such. I don't know the solution, sir, I will guided by yourself.

PN95

THE COMMISSIONER: Yes, thank you, Mr Wydell.

PN96

MR SLOAN: Commissioner, can I just respond shortly and briefly to that. The first thing is that the analogy raised by my friend as to a boss telling a worker to move a truck in return for an hour's overtime is inept. We are talking about this employee saying that unlike everybody else on the ships he had a special arrangement for himself that he would get these additional allowances when he acted up. Now, it has to be remembered that when you are considering whether or not such an agreement existed you have to think of the improbability of it existing for this employee as opposed to any other employee that was ever required to act up.

PN97

So, it is not simply a matter of saying well if the worker comes in here and says yes, there was an agreement, then you can take it as read that there might have been such an agreement in the absence of evidence from the company to the contrary. The onus stays with the applicant to prove the existence of that agreement. It doesn't shift as my friend would almost have you believe by the submission that has just been made. That is all I want to say. Anything else will be a matter for evidence, I think Commissioner.

PN98

THE COMMISSIONER: The Commission notes the limitation on powers given to it pursuant to the disputes procedure and so I am not sure that, unless the parties are prepared to enhance those powers, I am not sure that I can do much more than make a recommendation or make a comment that it seems to me that given the words of the Certified Agreement, including the reference to back pay, and it is not an easy area to understand as noted by my own concerns but nonetheless I understand both sides, an agreement that there isn't such an obligation, it would seem to me that the company should consider complying with its obligation and pay the back money.

PN99

However, it would also seem to me that the testing of whether or not there is an agreement, or there was an agreement to pay the employee at odds with the clear words of this agreement, I presume the earlier agreement, it needs to be tested. I only make the observation the employee if to put the company to the trouble should not, if it is to put the company to the trouble, the employee should not be surprised if the company seeks full restitution of any overpayment should a magistrate or a judge decide that in fact there has been overpayment.

PN100

If on the other hand the applicant's position is vindicated well then the situation remains - he gets no - he doesn't have to pay back pay. Presumably, at least from 1 March or from March of this year the company revised its position. It made it quite clear to the applicant that that is at an end. He presumably has acquiesced in that and in any case sometime later became a First Mate so the issue ended. If the Commission had had more power it very well have had something to say about - or perhaps an ability to test whether or not such a contract had existed and whether in fact there should be some offsetting but that doesn't seem to be apparent. So, I think we are left with the position initially put Mr Wydell and that is that he is entitled to have the agreement applied.

PN101

What happens as a consequence of that - the employee goes forward in that regard with his eyes wide open. I don't think I can take any further and I propose to adjourn. Thank you.

ADJOURNED INDEFINITELY [12.22pm]