C2003/1840, Transcript of Proceedings [2003] AIRCTrans 1679 (2 May 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2003/1840

THE AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS

and

TEEKAY SHIPPING (AUSTRALIA) PTY LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re manner of conducting lifeboat drills
on the vessel MV Seakap

SYDNEY

11.35 AM, THURSDAY, 17 APRIL 2003

PN1

MR H. CHRISTIANSEN: I am the Federal Secretary for the Australian Institute of Marine and Power Engineers.

PN2

MR S. MEEHAN: If the Commission pleases, I am a solicitor, I seek leave to appear for the company. With me is MR D. PARMENTER.

PN3

MR WYDELL: If the Commission pleases, I am a solicitor in the employ of the Australian Maritime Officers Union. We would seek leave to intervene in this matter.

PN4

MR CHRISTIANSEN: Sir, whilst I was not advised by the company that they would seek to be represented today by legal counsel I have no objection to that given the issues that are involved go to matters of, amongst other things, regulations under the Navigation Act. Nor was I advised of the attendance of the AMOU and I have absolutely no idea the basis on which they seek intervention.

PN5

THE COMMISSIONER: Yes, okay.

PN6

MR CHRISTIANSEN: Therefore, at this point we would ask that they not be allowed to formally intervene but if I could make the assumption that they might want to attend these proceedings with a watching brief in terms of whether the interests of any of their members were impugned, perhaps, you could hear them on the question of intervention if such an issue arises. If the Commission pleases.

PN7

THE COMMISSIONER: It might be easier, Mr Wydell, for you to indicate - are you happy to basically have a watching brief and press your intervention in due course, perhaps, with the consent of at least one or the other parties or do you want to press that now?

PN8

MR WYDELL: No, sir, we would rather press that now. As I say the basis of our intervention I think is reasonably clear. Anything that the Commission might do would directly affect the mates who the AMOU represents and likewise I think from Mr Christiansen's notification the Master is also involved in this and of course the AMOU would have something to say in relation to the Master as well.

PN9

THE COMMISSIONER: The Master seems to have given certain instructions to the engineer, is that the case?

PN10

MR WYDELL: I believe that's the case.

PN11

THE COMMISSIONER: Yes, and that's why you seek intervention?

PN12

MR WYDELL: Yes, sir.

PN13

THE COMMISSIONER: Thank you. What's your attitude to that, Mr Christiansen?

PN14

MR CHRISTIANSEN: Thank you, sir. Given that in fact the actions taken by the Master as the onboard representative of the company are actions taken as a manager and as the immediate representative of the company we would feel that that is a matter appropriately dealt with between ourselves and the company and that only if there are matters of a personal nature that go to an industrial position or the conditions of employment of the member, ie, as a member of the AMOU, rather than his actions as Master and company manager. We think only if those arise should the intervention actually be permitted of the AMOU.

PN15

THE COMMISSIONER: Yes. Mr Meehan, leave is granted to you as a solicitor. What's your attitude to the intervention of the AMOU?

PN16

MR MEEHAN: We're not opposed to that application.

PN17

THE COMMISSIONER: Yes, thank you. I propose to grant intervention to the AMOU. Yes, Mr Christiansen, what's this about?

PN18

MR CHRISTIANSEN: Thank you, sir. I would like to hand up to you an amended notification of industrial dispute that I sent to the company on 7 April. I think I faxed it to the Commission as well. If you already have it perhaps we can give the amended one to the AMOU if you already have it.

PN19

THE COMMISSIONER: You sent it to us on 7 April?

PN20

MR CHRISTIANSEN: Yes, sir.

PN21

THE COMMISSIONER: Yes, and it has something like 14 paragraphs?

PN22

MR CHRISTIANSEN: That's correct, sir.

PN23

THE COMMISSIONER: Yes, okay, I have it.

PN24

MR CHRISTIANSEN: For ease of reference it might be just as well if the attachment which was annexed to the original dispute notification, that is, the letter of 3 April to the company and the attached marine notice 17 of 2002 were detached from the original notification and attached, if you like, to the amended notification.

PN25

THE COMMISSIONER: Just the marine notice?

PN26

MR CHRISTIANSEN: No, and the letter so that we henceforth only really need to refer to that one document rather than harking back to the original notification which had that attachment. So if we take the last two pages off, it's the marine notice 17 of 2002 and the letter to the company of 3 April and if we attach those to the amended dispute notification. Thank you.

PN27

THE COMMISSIONER: All those things together we might mark AIMPE 1.

EXHIBIT #AIMPE 1 AMENDED DISPUTE NOTIFICATION, MARINE NOTICE 17 OF 2002 AND LETTER TO THE COMPANY OF 3 APRIL

PN28

MR CHRISTIANSEN: Sir, I took the trouble of trying to outline in some detail our views about these matters because on the face of it they might have taken a little time to grapple with. I also wanted to give the company forewarning of our view about how the conduct of the boat drill onboard the vessel Seakap on or about 18 March of this year was in our view in a manner which was fully consistent with the Marine Orders, the regulations under the Navigation Act, which prescribe how these matters are to be done and that in our view the conduct of my members or several of my members informing the view that they were unhappy in terms of their own personal safety to be in the lifeboat when it was either being lowered to the water or being raised from the water but would otherwise participate fully in the lifeboat drill, that it is in fact a reasonable position for them to have held and one which is consistent with Marine Orders if one has a proper understanding of them. Therefore, we wanted to put forward the basis on which we formed that view and we put it forward in some lengths in those 14 points that you have referred to.

PN29

Before we go to that, sir, I suppose we had better talk about what actually happened on or about 18 March and on a later occasion several days later when the Master took these people aside and came up with a different point of view than was arrived at on or about 18 March. I might just take you to the description first in the first couple of points of my dispute notification, AIMPE 1. That is that:

PN30

On or about 18 March in the Port of Newcastle the vessel MV Seakap conducted a lifeboat drill. The first mate asked the first engineer to enter the lifeboat and be lowered in it to the water to run the boat in the harbour. The first engineer said that in light of the recent injuries/deaths in just such circumstances he would decline to be in the boat whilst it was lowered or raised.

PN31

Point 2:

PN32

The first mate then asked the third engineer who declined for the same reasons.

PN33

Point 3:

PN34

During the lifeboat drill a meeting was held involving Teekay's ship manager, a Mr Ted Ireland, who agreed their concerns were legitimate and reasonable.

PN35

On 3 April 2003 the Master of the vessel, Mr Wayne Parkin, at 8.15 am called into his office...

PN36

Perhaps we will ignore the emotive term about how he did it but he called into his office:

PN37

...the first engineer and the third engineer. The chief engineer was informed by the Master immediately prior to that meeting and he chose to attend. The Master in that meeting made demands of them that at the next lifeboat drill if any of the ship's engineers refused to get in the lifeboat and allow themselves to be lowered to the water he will assume that they are not participating in the drill despite their attendance at it and he will sign them off the ship's articles and he will assume that they thereby resign from the employment of Teekay.

PN38

We will leave it at there because after that the remaining points are propositions which we have put forward and I will come back to that in due course. If we could turn to the events of 18 March - sorry, it actually turns out to be 19 March, as I said, on or about 18 March, it was 19 March in Newcastle - I have a statement from the three engineers concerned, one from each of them. Can I say that I requested a statement of each of the first engineer, the third engineer and the chief engineer. I gave them no tutelage in how it should be other than it should be their truthful recollections of events on those two days, the 19th and the 3 April, respectively.

PN39

I don't have copies for the AMOU I regret, I wasn't aware of their attendance. If I could hand up the first of these. The first of these, sir, is a statement from Peter Salter, the first engineer of the vessel Seakap. Did you want to mark it?

PN40

THE COMMISSIONER: All right, we will mark that exhibit AIMPE 2.

EXHIBIT #AIMPE 2 STATEMENT FROM PETER SALTER

PN41

MR CHRISTIANSEN: Thank you. I appreciate you have it there to be read. The AMOU does not so perhaps if it's okay I'll read it to the Commission?

PN42

THE COMMISSIONER: No, I don't want you to do that, it's too long. What does it say? What are the main things it says?

PN43

MR CHRISTIANSEN: Okay.

PN44

THE COMMISSIONER: Can I just say, we're going through - I wasn't kind of appreciative of how long we may be here today when we listed the matter and we have got time but your broad point is what in relation to this, that they were asked to do something that they need not do?

PN45

MR CHRISTIANSEN: Okay, let me encapsulate the issues as we see them. Firstly, we would like to establish the facts as the statements from the three members concerned are that two of them were requested by the first mate to be in the lifeboat during its lowering and raising. Two of them declined on safety grounds having regard to a spate of incidents over the last several years which include warnings from the Australian Maritime Safety Authority about mitigating the risk.

PN46

In fact whilst that lifeboat drill on 19 March was being undertaken the ship manager, Mr Ted Ireland, held a meeting, I think it may have been on the bridge but it's not material where that was, which involved the Master, Mr Ireland and I think it was the three engineers, the chief engineer, the first engineer and the third engineer. Having heard them in relation to their concerns he agreed, and each of the statements from the engineers will go to that issue, that the ship manager on that day agreed that their position was a reasonable one and that that was an end to the matter.

PN47

Apparently, I mean I have no information about this other than I do understand from the company as well that, in due course the Master was in contact with the company, that is after these occurrences, and the Master in talking with the company presumably they have discussed about whether they thought this was appropriate or not and one presumes that with some measure of support or instruction from the company he has on 3 April called the two engineers into his office accompanied by the chief engineer and that the statements from each of the engineers will show that the points as outlined in point 4 of my notification of dispute is essentially what occurred, that is, he made those assumptions about that it constituted resignation, that it constituted - despite their attendance at the lifeboat drill it constituted in his view, he would assume that they were not participating. He would sign them off the ship's articles and he assumed that that constituted a resignation by them from their employ.

PN48

You will find in those various statements in a very understated way I think from each of the engineers as to how they felt about what was being said about them. I think they've been pretty modest about their impressions about that but they certainly felt their employment was being threatened. Also, during that interview on 3 April the Master asked them:

PN49

Is there any mechanical fault with the equipment that bases your fear of going on that?

PN50

They said:

PN51

No, if there was a mechanical fault we would fix it, we're engineers.

PN52

So, if you like, on the facts a couple of points that the threats were made as to their employment. That the instruction that at the next lifeboat drill they must allow themselves to be raised or lowered or those threats would be carried out and that the meeting with the ship manager took place and that the company's representative, the manager of a number of ships, a fleet manager, agreed that their position was reasonable.

PN53

THE COMMISSIONER: I was just going to ask you that. What is a ship's manager exactly?

PN54

MR CHRISTIANSEN: He works in the office of the company, Teekay. He has the charge over the Masters and chief engineers for a group of ships.

PN55

THE COMMISSIONER: Right, but what was he doing on the boat then?

PN56

MR CHRISTIANSEN: It was in the Port of Newcastle and he had called down in the normal course of his duties.

PN57

THE COMMISSIONER: I see, so it was in the Port of Newcastle and he just happened to be there or they called him down?

PN58

MR CHRISTIANSEN: No, he happened to be there.

PN59

THE COMMISSIONER: Okay, and he agreed with them, okay.

PN60

MR CHRISTIANSEN: Yes.

PN61

THE COMMISSIONER: But in the end - - -

PN62

MR CHRISTIANSEN: The Master presumably talked to someone higher up the chain.

PN63

THE COMMISSIONER: Okay, and that's the end of Mr Ireland's role in all of this?

PN64

MR CHRISTIANSEN: Indeed.

PN65

THE COMMISSIONER: I didn't want you to read that AIMPE 2 but I guess you've explained a fair amount of it. Did you want to produce the other two statements as well or mark them?

PN66

MR CHRISTIANSEN: Certainly, yes, I'll produce the other two but perhaps before I do let me just summarise, if you like, the whole of this matter to get us somewhere. The Institute has sent a letter which you have there attached to AIMPE 1, it's the letter of 3 April addressed to the company. If you go to the second last paragraph it makes three requests of the company. It says:

PN67

I would appreciate if the Master would promptly withdraw his instruction.

PN68

That is his instruction that they must allow themselves to be raised and/or lowered:

PN69

That he retract his heroic assumptions.

PN70

That goes to his assumptions that their not participating in a lifeboat despite their attendance and his assumption that they are resigning their employ, and:

PN71

That he honestly apologise to all three in public, ie, in the same way he threatened all three in public.

PN72

By that I only mean that if there were four of them in a room, the Master's office, on the day which he on behalf of the company made those threats against their employ then in my view it should be the same room and the same four people in which we would ask that he apologise for making those threats against their employ.

PN73

Can I stress too that this does not go to personalities. We have the belief albeit it may be an assumption but understanding that after Mr Ireland thought it was a reasonable matter that we know the Master spoke to the company higher up the management structure. We make the assumption they formed a contrary view to the one that Mr Ireland shared with my members because of events that occurred thereafter and we make the assumption that the Master in so doing was actually doing so at the instruction of people higher up the management tree.

PN74

So, therefore, there's nothing as to personalities in this. We ask the Master to make the apology because he was the one, if you like, that made the threats against people's employ. This has nothing to do with Mr Wayne Parkin per se, it has to do with threats as to their employ made we take it on behalf of the company. We would certainly be most distressed if they were made just because he thought it was personally a good idea as opposed to being made on behalf of the company. So unless there is evidence to the contrary that is the appropriate view to form about someone who is management's representative on the ship.

PN75

We say that the three requests that we've made in our letter of 3 April are appropriate industrial matters and that the company has not agreed to them. We say, therefore, an industrial dispute exists and we ask you to make a finding today as to an existence of industrial dispute in accordance with our letter of 3 April and in particular the company not having agreed to those three claims.

PN76

THE COMMISSIONER: What are the three claims specifically again?

PN77

MR CHRISTIANSEN: Well, the first is that he withdraw his instruction as to participation in a lifeboat drill that they actually do certain things, and we'll go to that. We will have to do that in some detail because our proposition to you is that it is a reasonable proposition for them to have found the view, formed the conclusion that it is unsafe for them particularly as it is not necessary. In our view the conduct of the lifeboat drill, and we'll go to that in probably more detail than time will permit today, that Marine Order 25 sets out in great detail exactly how a lifeboat drill would be conducted.

PN78

It takes those words word for word from an international convention called the SOLAS Convention, Safety of Life at Sea Convention, and in particular from article 19 of the SOLAS Convention. So those words have been around a long time and a lot of things have changed on ships since then. We note that whilst word for word the Australian Maritime Safety Authority adopted the wording of the SOLAS Convention in relation to lifeboat drills into Marine Order 25 it created another Marine Order, Marine Order 21 which says that you shall conduct lifeboat drills subject to two things, not one, two things. The two things are procedure set out in Marine Order 25 which is the SOLAS words and your onboard ship safety management system.

PN79

We would go in great detail to you about what that means and the obligations of such a safety management system in accordance with the Occupational Health and Safety Maritime Industry Act 1993. Therefore we would form the conclusion that this is not some blind set of words, some regulation which you have to do notwithstanding that people could get injured in carrying it out. You are required by Marine Order 21 to modify your application of that in terms of good sense, in terms of experience and in terms of therefore your ship safety management system, your duty of care, your overriding obligations as to safety.

PN80

We say in accordance with that, it was open to the company and its respective masters, chief engineers, shipboard management committee, on board safety committees or if it takes that much to get it resolved, the industrial negotiations who represent persons at sea. It is open for all of us to reach a view about what is a reasonable apprehension as to safety in the light of a number of incidents, in the light of warnings from the Australian Maritime Safety Authority requiring people to mitigate the risks.

PN81

One does not simply blindly keep on carrying out the words of SOLAS 19 and marine order 25 without accepting that the responsibility for mitigating that risk has fallen under the shipboard management system which is specifically given that power under marine order 21. The responsibility has fallen to us all to modify the lifeboat drill procedures as we feel necessary in accordance with overriding safety and duty of care obligations.

PN82

We therefore, believe this is not something where we have to blindly follow a set of words. We believe that the duty of care obligations and the Occupational Health and Safety Maritime Industry Act 1993 requirements which do not kowtow to any such regulations but are absolute that those requirements mean like any other task that we perform. We can't shuck it of the AMSA and say well I did this job as chief engineer because I thought that's how the regulations required them to be done.

PN83

Every time we do anything on board a ship we must say, hang on, I'm the man who has the best qualifications on this here on the ship and I'll make the decision about the job that I'm about to do whether it is safe or not. Notwithstanding that I'm supposed to carry out a task, if I think it is unsafe I will stop.

PN84

THE COMMISSIONER: Well it would be untenable though that if issues of safety were left to the opinion of every individual at a work place though, wouldn't it?

PN85

MR CHRISTIANSEN: Sir, we plan to demonstrate to you that that the history incidents of accidental injury and death during the life drills is such that every possible step should be taken to mitigate the risk and that AMSA has left the details of the procedure by virtue of your safety management system on board called up in marine order 21 has left that at our discretion.

PN86

We say that is a discretion that we and the company have and we seek it to be utilised such that if one of our members says, I don't want to travel down in that boat to the water, I'm happy to participate in the drill here on the deck and I'm happy after the boat has been lowered in the water to climb down a ladder and climb on board it an motor it around the harbour or such other arrangements for example the marine orders also require that every vessel have a gangway that can be lowered to water lever. So you can lower the gangway to water level having put the boat in the water and you climb on board.

PN87

There is no reason other than an archaic set of words that says that we have to be in the boat whilst it is being raised or lowered particularly as it is exactly that time, every time in which people are injured.

PN88

THE COMMISSIONER: Isn't the - you will probably tell me this but isn't the having of persons in the boat and being lowered up and down part of that safety process, you know the safety on board stuff you told me about. Can you test these things without participating? You say you can without it, do you, you don't have to be in the boat going up and down.

PN89

MR CHRISTIANSEN: No, one is testing the release mechanisms, one is testing the ability to lower the boat to water level. One needs to put the boat in the water because one needs to take it for a bit of a motor around the harbour. This is all being done in sheltered water, take it around the harbour, test that the boat moves astern as well as forward, test that the engine, whilst good enough still to rotate the propeller perhaps whilst you are in the davits but then it has enough power to actually propel the boat, so it does need to be tested in the water.

PN90

THE COMMISSIONER: You will probably get to this as well, does Teekay do their little testings in a way different from other ship companies with which you do not have problem?

PN91

MR CHRISTIANSEN: Sir, in general I would say no, although in my experience and the experience and the experience of a number of engineers that I've spoken about since this matter has been raised, they've said to me for example that if any engineer in their company didn't feel like going in the boat for just that kind reason then they wouldn't, they would find an engineer who did feel and did it. That it wasn't a big issue because for them the important thing was to test the boat in the water, not whether anyone was actually in it during the raising or lowering. The testing of the mechanical ability to raise or lower the boat doesn't require people to be in it.

PN92

THE COMMISSIONER: Yes, I see. Yes, go on.

PN93

MR CHRISTIANSEN: Marine orders 25, as I said, with the wording from the SOLAS Convention of article 19 of the SOLAS Convention speaks of having the complement of the boat in it whilst it's launched. As I say, those words, however, in our view are modified by marine order 21 which says, well yes you will do the boat drill in accordance with those words but also in accordance with your safety management system.

PN94

Therefore, we say we have the ability based on a reasonable apprehension as to safety to modify the requirements of marine order 25. If they weren't able to be so modified Then marine order 21 wouldn't say you will do it in accordance with marine order 25 and your safety managements system. If marine order 25 was inviolate you would just have to do and it wouldn't matter what your safety management system or durative care or health and safety.

PN95

THE COMMISSIONER: What is the safety management system?

PN96

MR CHRISTIANSEN: It is essentially a set of principles on board the ship as to conducting any task in accordance with your occupational health and safety obligations. It draws on both a thing called the international safety management code, being a code of IMO, International Maritime Organisation, and it is a management document to give effect to the obligations of the ISM code and to call up the obligations under the Occupational Health and Safety Maritime Industry Act 1993 much like anything else, it is for the most part a whole lot of motherhood statements about any task.

PN97

In implementing the ISM code at a ship by ship level, the staff on board, the deck officers and engineer officer have been given the task of rewriting their principal operating procedures with that in mind. So a whole lot of work has been done in the last several years in relation to key operational tasks for example for about setting out chapter and verse all the things they need to be considering at a time when they are doing task X or task Y. I guess for our purposes you wouldn't really have to go much past that it is how on board systematically one attempts to give effect to duty of care.

PN98

Sir, I will take the opportunity then of passing up to you the other two statements. I will perhaps pass them up together.

PN99

THE COMMISSIONER: Yes, they will be exhibit AIMPE3 and 4, 3 being the statement of Mr Lockwood and 4 being the chief engineer who is Mr Spence.

EXHIBIT #AIMPE3 STATEMENT OF MR LOCKWOOD

EXHIBIT #AIMPE4 STATEMENT OF MR SPENCE

PN100

THE COMMISSIONER: Yes, proceed.

PN101

MR CHRISTIANSEN: I guess, sir, one thing that I would need to take you to in relation to each of those, if I could turn to AIMPE2, is what was actually said at the meeting that the master called at 8.15 on 3 April and that is this is in the words of the participants themselves, if I could take you to AIMPE2 if you go to three-quarters of the way down the page, the paragraph commences "Whilst at the morning works committee...".

PN102

THE COMMISSIONER: Yes.

PN103

MR CHRISTIANSEN:

PN104

Whilst at the morning works committee meeting, the master ...(reads)... the chief engineer himself to attend -

PN105

that addresses the fact that he thought that the chief engineer was instructed to attend in the same capacity as the first and the third were. In fact the statement of the chief engineer will demonstrate that that is not so, that he volunteered to attend because two of his people were being called in front of the master. The master then said:

PN106

Is there any maintenance defect with the starboard lifeboat ...(reads)... First Engineer, Seacat.

PN107

If I could take you to AIMPE3 - sorry there is one other thing whilst we're on AIMPE2. The question about the position of the ship's manager Mr Ted Ireland. If I could take you half way through the first paragraph, it commences half way along the line:

PN108

Ted Ireland spoke and asked me why I wasn't willing to get into the lifeboat -

PN109

do you have that?

PN110

THE COMMISSIONER: Yes.

PN111

MR CHRISTIANSEN:

PN112

- - - and I replied I do not feel safe in the lifeboat being lowered down on the falls -

PN113

the falls being the cables:

PN114

- - - and being winched up. It is a very hazardous ...(reads)... and lowered to the water.

PN115

If I could take you to AIMPE3 as being the statement of Mr Andrew Lockwood who I think is the third engineer. If I could start at the bottom of the first page, last line - sorry I will start above that.

PN116

I then said that if directed to do so I would participate in ...(reads)... the meeting was then concluded.

PN117

In relation to 3 April, Mr Lockwood's statement indicates that the three of them, the chief engineer, the first engineer and he were in the master cabin:

PN118

The master said that if any engineer refused to take part ...(reads)... and the meeting ended.

PN119

Just pausing for a moment there sir, both statements in unemotive terms confirm the position of Mr Ireland, the Ship Manager, that their views as to safety were reasonable and that they were not required to be lowered in the lifeboat or raised and both statements confirm that the master indicated that he would sign them off articles and that he would consider them to have resigned from the company if they did not allow themselves on the next occasion to be lowered or raised in the lifeboat.

PN120

AIMPE4 being a statement of the chief engineer, Mr Bruce Spence, the first couple of sentences indicate that Mr Spence wasn't actually involved in the initial lifeboat drill in which people were asked to get into the lifeboat and indicate how he became involved:

PN121

During my dealings with the contractor a loud discussion started in front and to the right of the chart table -

PN122

this on the bridge:

PN123

- - - (out of my sight) between the engineer's mate ...(reads)... housed with people on board.

PN124

If I could go over the page, sir, master's office, 0815 hours, 3 April, Mr Spence the Chief Engineer says:

PN125

The master advised me before the meeting that he had ...(reads)... consider it your resignation.

PN126

THE COMMISSIONER: Yes, go on.

PN127

MR CHRISTIANSEN:

PN128

The statement pertaining to this was not directed ...(reads)... engineer's work mobile phone to call the AIMPE -

PN129

Conclusions and points of note, those go to whether he was personally felt himself to conclude in that or not and that is why our notification of dispute was amended. The substance of the amendment being it turned out that the chief engineer had not been instructed to attend the master's office.

PN130

Sir, could I just ask for a moment as to how much time you do have available for us today?

PN131

THE COMMISSIONER: Well it really depends on what you - one, I'd like to hear from the company as some of the facts may not be in issue - - -

PN132

MR CHRISTIANSEN: Sir, I'm minded that under the dispute settling procedure in the enterprise agreement between ourselves and Teekay that relates to the ship, the parties have not conceded to the Commission how to arbitrate. Therefore, notwithstanding anything that may be said or if you like led in evidence or whatever else. The only outcomes that there can be under the dispute settling procedure are either that we end up in furious agreement by some process of conciliation or that that not being possible the best that either party could ask for is a recommendation from yourself which of course is up your own judgment given how far at odds the parties are.

PN133

There is a great deal of material that AIMPE would want to put on the record that makes the case as to the incidents that have occurred and being investigated by the Department of Transport or as it is not the Maritime Incident Investigation Unit is now a subset of Transport and Regional Services.

PN134

There are six investigations of which my union is aware in the last 5 years. They are exhaustive in detail but there are common elements that I would pick out of all of those. Obviously I am summarising at the moment and we would have to go to that and consider the detail but we would summarise is this way. That is that for the most part these incidents which have occasioned serious bodily harm and in the case of some incidents named within there, the death of persons involved in the lifeboat who were lowered or raised in the lifeboat.

PN135

For the most part these incidents have occurred with no one having any knowledge of any mechanical fault. On several occasions there has been a mechanical fault which was not evident. On one occasion the incident occurred because the designer and manufacturer of the equipment themselves issued instructions for their operation which if you followed them would not properly secure the lock.

PN136

So on the best information from the designer and manufacturer you were still at risk and there was no way you would know about that in advance. On other occasions the involvement and ingress of sea water and therefore the effect of electrolysis between dissimilar metals has caused corrosion, not apparent to the observer, even to the qualified observer, that has impeded the operation of it but it is not a mechanical fault, it is just facts of life as to metals at sea.

PN137

However, the great majority of them, even those where there is some measure of difficulty as to ingress of sea water involve operator error, either carelessness, lack of training, lack of knowledge, lack of fundamental understanding. That lack of knowledge is across all disciplines. It is seamen, it's deck officers, it is engineers.

PN138

THE COMMISSIONER: Mr Christiansen, if the concern of the union and of the two employees and by the two employees is that Teekay or this vessel or the master - well actually I don't think you have criticised the master per se - don't follow safe practice in doing this, then that's one consideration. If on the other hand it's a broad question that the lowering of life boats with people inside and these drills is inherently unsafe well why are you here? Why isn't the union promoting its concerns with AMSA or some other government instrumentality? What does it have to do with this Commission because there is a limited thing, the Commission would just give a recommendation to the company that these two people be some how excluded for some kind of conscientious objection and perhaps they should be excluded from drills. That is not saying this Commission would do that but if that solves the problem all right but if you say it is a wider problem then why should the Commission involve itself into whether something is safe or unsafe when there are bodies particularly charged and more adept at dealing with such considerations?

PN139

MR CHRISTIANSEN: Sir, this goes to all the points in my notification dispute from 5 onward and as I said it is a question of how much time we have today as to whether I commence today on going through from points 5 onward and putting supporting material to you in relation to all of those points.

PN140

The conclusion that points 5 to 14 is essentially that we would ask you to recommend that in your view - and this is the difficulty I haven't even presented any material to you yet about marine order 21 or marine order 25 and like I said this is a lengthy process. We would ask you to conclude, albeit that you can only express that as as recommendation, that it is open to the employer and such other people as they involve through their safety management system, it is open to them to modify the procedures otherwise set down by marine order 25 and that they have an obligation to do so to mitigate the risk. I haven't taken you either to the attachment to the dispute notification which is marine order 17 of 2002 and I've put big black arrows at the part of it which speaks about mitigating the risk.

PN141

AMSA hasn't spelled out exactly what to do but the thing is AMSA doesn't at any time spell out exactly what to do in terms of a conduct of a watch be it on the bridge, or in the engine room, it doesn't tell you exactly what to do. They regulate by saying do this safely, be aware of these risks, sort it out yourselves on board. In our view our proposition to you is that that is exactly what they've done by marine order 21 making marine order 25 subject to the principals of safety management system. We say therefore subject to decisions that might be made by the company and its staff or by the company and its employee associations about what is a reasonable proposition that being lowered in those boats is one not essential and two - sorry, let me change the order of that. Is one inherently high risk which the marine notice you're looking at and all the cases that I want to put in front of you will demonstrate to you that it is a very very high risk undertaking.

PN142

THE COMMISSIONER: But if it was as very high risk undertaking and if it is high risk because of Teekay's failure then that is one thing, but if it is high risk per se - it doesn't matter who owns the ship and what kind of ship it is - well why shouldn't marine order 25 be withdrawn or cancelled, I don't know what the appropriate word is, because if it is inherently unsafe well then that's the end of the matter. How could AMSA be promoting an inherently unsafe requirement of mariners or of ship owners?

PN143

MR CHRISTIANSEN: We say they're not, sir. We're saying they've dealt with the matter by knowingly putting marine order 25 subject to the decisions of the people in the work place about what is safe. So we say they have got the discretion we want it exercised.

PN144

THE COMMISSIONER: So you say Teekay is doing something different from what other vessels are doing?

PN145

MR CHRISTIANSEN: Sir, the only thing Teekay is doing different is that when one of my members is saying he doesn't want to go down the boat, they are instructing the master to threaten the employment of my members which is why we are here and that is an industrial matter.

PN146

THE COMMISSIONER: Yes, but you seem to be suggesting that the exclusion or the condition that we find in marine order 25, going on your view, well marine order 25 just becomes totally useless because all you need is somebody to think or to say that something is unsafe and it doesn't have to be complied with. The only way marine order 25 operates is if the employer in fact doesn't follow it to every claim any employee may make. Isn't that a bit of a difficulty for - without evidence about all of this it is a bit unclear but I need to clarify whether this is an attack on Teekay shipping processes or whether it is an attack - I don't sue the word pejoratively but a concern about instruction given by AMSA. If it's Teekay then you can say well BHP or other ASP other owners of ships don't do it this way well then Teekay may very well have to alter its operation. If on the other hand Teekay does it like everybody else it is a different aspect. It only goes to whether the Commission exercises its discretion your way or not I suppose but it would be nice to know how big this matter is.

PN147

MR CHRISTIANSEN: Well, sir, I haven't come here today with witnesses or statements from people in other companies because our view of it is that the issue before us is one the is particular to TH in fact particular to Seacap simply because on Seacap where people evidence a reluctance on safety grounds to be raised or lowered in the boat, instead of saying there you go and finding someone who didn't have a concern, for example go and ask the second engineer who was down in the engine room or ask the chief engineer which wasn't done, that people have at first instance agreed with them that their position is reasonable, which I think is exactly what we would find has happened in other companies, that yes that's reasonable, okay, you didn't want to do that, that's fine. Why? Because we can still run the boat. We can lower the boat to the water, we can put people in the boat and we can go around the harbour.

PN148

In my own experience I've been in a position where I didn't even raise such a matter as the safety ground but the mast of the boat lowered to the water with nobody in it had a broader ground to the wharf and the rest of the people got on board. Two people climbed down by ladder to get in it and release it from the fall.

PN149

So it seems to me there is enormous discretion permitted in terms of how the regulations are currently to take the view that nothing can be done about the industrial matter in so far as Seakap where it arises because only the company sought to then impose a sanction and that hasn't happened anywhere else. And therefore this is particular not only to Teekay but particular to Seakap. That is the reason that this comes forward.

PN150

We agree with the view of the ship Manager, Ted Ireland, who formed the view based on his recollection and understanding of the incidents which as I said I've brought copies of and wish to take you through for a detailed understanding of those incidents and the fact that it doesn't require a mechanical fault. You are unable to predict this. In the most cases, it has been an incidence of operator error and the fact that you are lowering or raising a boat with perhaps 15 or more metres between the boat and the water, if one fall is released, then the boat is suspended by one end and the next minute that fall will be released and the boat will plummet to the water and unlike when I went to sea when they were open lifeboats and where the practice was that you lowered it with as few people as possible and on several occasions I was in the lifeboat whilst it was being lowered from the davits.

PN151

But there were 3 or 4 knotted ropes which lay in the bottom of the boat and which were fastened to the ship above and as the boat was lowered, you were instructed to hand over hand on that rope as you went down. In the event that the boat got away from underneath you, you would clasp that rope and you would save yourself. Those things can't be done today. Technology has moved on, the boats are fully enclosed. You get into a boat through a narrow hatch and you are lowered fully at the mercy of the fastening systems for that boat.

PN152

These reports will detail to you even when they are in perfect mechanical order, operator error will occur because of the diversity of fittings. Each ship has a different set of fittings to the next. There are so many manufacturers, there are so many types of systems - they are all different. Persons coming to the ship who are supposed to be the authoritative person in relation to maintaining that equipment may never have seen this particular fitting before as they are all different.

PN153

As I say I need to take you through all of this but I just wanted to paint the generic just to where we would seek to take you. When one looks at the conclusions, the findings of these incidents, when one looks at recommended courses of actions in relation to those, in each case the Department of Transport and Regional Services, the investigation unit, has on several occasions said there were difficulties in the design that is, there were design faults - not mechanical faults, but there were problems with the design and they made recommendations to the manufacturers for change which the manufacturers are under no obligation whatsoever to take up and even if they did, for future items of equipment, you've got all the existing installations.

PN154

Accordingly we would say a reasonable person would form the view that despite the fact that my member said to the first mate or the master in those meetings, that there was no mechanical fault for them to rectify, that doesn't change anything because most of these incidents have occurred in just those circumstances.

PN155

So the other thing is that these six cases in five years here in Australian waters are those six which were sufficiently serious that they warranted a full departmental investigation. There are any number of cases every week across the ships in Australian waters in which either no incident is reported to the Australian Maritime Safety Authority or it is reported but is not serious enough to warrant a full-blown investigation by the Department.

PN156

In the last three years, two such have occurred on board this ship and we would want to take you to the detail of those. There have been two instances on board Seakap of problems with her own lifeboats. Now it is not that the company didn't after each of those do the best that it could. My point to you is that the evidence that we would want to put in front of you would show you that notwithstanding the best efforts, there are so many variables here, most of which go to the question of operator error and with the change of crews at periodic intervals, will continue to be and therefore we say that marine order 21 as it imposes upon marine order 25 an obligation to have regard to use safety management systems, imposes on the company and its officers, the master, the chief engineer, my members, an obligation to, if they consider there is a reasonable risk and we say to you, the weight of this evidence will be that there is a reasonable apprehension of risk and we agree with Mr Ireland, it was reasonable to form that view.

PN157

We are therefore of the view that it is within the power of the company in accordance with its safety management obligations and because marine order 21 permits, nay requires that marine order 25 be modified by the safety management system, we say that the company has no excuse not to act, we say it has the power to do so, we say that the marine orders permit it and therefore we have an issue with Teekay not with AIMPE. We don't want to change the regulations so that it is amply afforded the opportunity to modify marine order 25 by safety management procedures.

PN158

We therefore want the company to do so and in terms of the three things that we asked for in our letter, we ask the company to form that view with us, that Ted Ireland has already formed, that the position of our members was and is reasonable and that it is reasonable for engineers or anyone else of course to apprehend as to their safety in being lowered or raised during these drills and therefore politely refuse to do so with no ill befalling them. In relation to the threats made as to their employ, we feel it is sufficiently grounded by the conversations we've had with the company since and the statement of the chief engineer, Mr Bruce Spence, that he was told by the master as you heard me read a little while ago, that the master had been in contact with the office and that the master had been instructed - he had an instruction as to what he was to do.

PN159

So as I said personalities do not come into this. We believe that on 3 April the master acted as he was instructed by the company to do so and contrary to the previous position arrived at by my members together with the master and Mr Ted Ireland, we want the position of Mr Ireland and my members to be upheld. We believe the company has the power to do that and having done that, we would ask that the company withdraw that instruction and threat against my members and at that point, we think it is appropriate that the master through the same instrument that the threats were made, we think it is appropriate that the company make its apology to my members.

PN160

THE COMMISSIONER: But if they withdraw the threat and they were to fix and to enable - I am sure we are far away from this at this stage and accept that people can refuse, this - you are wanting an apology as well are you?

PN161

MR CHRISTIANSEN: Yes, sir. Not from him as an individual, sir, but as - - -

PN162

THE COMMISSIONER: Well wouldn't the Commission see that as trivial?

PN163

MR CHRISTIANSEN: It may do so sir, but that is still the demand we have made of the company and it is the demand that they have refused.

PN164

THE COMMISSIONER: Can I just stop you there. Can I hear from Mr Meehan. I realise you haven't finished even your pre-ambulary talks but - thank you. Yes, Mr Meehan.

PN165

MR MEEHAN: Commissioner, it's a surprising notification for a couple of reasons; the first I think is because the marine orders which are so fundamental to the matter before the Commission are statutory instruments, they're orders of the Authority made pursuant to the Navigation Act and in some cases marine orders give rise to offences which attract penalties under the Regulations and under the Act so they are serious statutory instruments. They are binding on my client and, indeed, members of the crew.

PN166

The reason I say the notification is surprising in that respect is that the union confidently asserts that Marine Orders 25 are subject to an overriding discretion created by, as I understand it to be put, marine order part 21. If the union is wrong in that submission, namely that there is no discretion and part 25 has to be complied with in its terms then there is enough on the face of the union's application to show that the members of the crew who have refused to participate in the drill in the way that we say is fairly clear in the orders would have breached the orders and when I say that that arises on the face of the notification you'll see in paragraph 7 of that notification that there is a selective recital of parts of the Marine Orders Part 25 but in the third dot point you will see that it recites that:

PN167

Every crew member must participate in at least one abandon ship drill every month.

PN168

In the last dot point in that paragraph you'll see that it says that:

PN169

Each lifeboat must be launched with its assigned operating crew aboard and manoeuvred in the water at least once every three months during an abandon ship drill.

PN170

What has clearly been put is that there has been a refusal by members of the union to participate in a drill in the way contemplated by those provisions in the order. If the union could not ultimately make good their submission about an overriding discretion based on a safety issue then they put at risk their members in a way that surprises the company in agitating it in this forum but, secondly - - -

PN171

THE COMMISSIONER: Can I just stop you there?

PN172

MR MEEHAN: Yes.

PN173

THE COMMISSIONER: Perhaps I shouldn't have but I'll do it since I have interrupted you. Mr Meehan, since this event happened on 3 April have these two employees continued to refuse or has their allocated drill roster not come up since?

PN174

MR MEEHAN: On my instructions the latter. There hasn't been an occasion yet where that has been further required.

PN175

THE COMMISSIONER: I see. Proceed, sorry.

PN176

MR MEEHAN: Can I also add whilst we're on that point in terms of the subsequent events, the alleged assumptions that have been submitted as part of the conversation between the engineers and the members of the management team have not been acted upon, even if those assumptions were made, no steps have been taken based on such assumptions so we say there's nothing to be made in relation to that aspect of the notification.

PN177

Can I return to the second point and it picks up on an observation made by the Commission as to the proper forum to agitate concerns about the operation of marine orders. Again, much has been put by the union as to what the marine orders actually mean. They say in their notification in paragraph 11 that:

PN178

The activity appears to be mandated by section 25.3.3.3 of Marine Orders.

PN179

I can say that my client's preliminary view is that they agree with that and they have acted in that way for many years. If there is a question as to inherent safety arising from compliance with mandated activities then we would say this isn't a forum where that issue will properly be agitated and the Authority is indeed an appropriate body to consider any representations going to that issue.

PN180

In relation to Marine Orders Part 21 we cannot see at this stage any provision relied on by the union that would have the effect that they submit, namely that there is a discretion that can be exercised by the company in relation to the way in which compliance with Part 25 of the marine orders relating to wet drills can be achieved. The company has acted on the basis that there is no such discretion. Those orders must be complied with but in carrying out its obligations it endeavours to do that in the safest way possible and, indeed, the Commission will have seen from the statements handed up today there is no allegation about any unsafe aspect of the equipment or the process relating to the particular vessel in question. The unsafety has been articulated as being one of inherent unsafeness in having to be on board a vessel during the drill. So we say the Commission, with respect, is not the right forum to be agitating this issue.

PN181

Can I then turn to some of the factual issues and I don't want to dwell on these because the Commission doesn't have the benefit of having those persons present to give their account and to be tested on that account should it be necessary but there is a contest between the parties as to what was said to the engineers. There is a dispute as to how the instruction was imparted but I can say that on my instructions management has acted consistently with a view that they are mandated to implement a drill involving having crew members on board, that they have taken the view that should an engineer who is to be part of that drill refuse to be part of the drill then it calls into question their ability to go to sea, to adopt the industry jargon. In other words, if the vessel and the company can't comply fully with obligations required to be complied with before the ship sails then the engineers won't be able to sail with the vessel.

PN182

We take issue with the suggestion that it was put that assumptions will be made about resignations and those type of things but as I indicated earlier even if such assumptions were made and were articulated they haven't been acted upon. In those circumstances we deny that threats have been made in the way that is suggested by the union to this commission.

PN183

We understand what the union now seeks out of today's proceedings are four things. The first thing is a withdrawal of the instruction. If by that the union is seeking for the company to desist from requiring members of the union to participate in drills in the way the company believes it has to be carried out then that is not instruction that would not be given in the future or would be withdrawn in respect of the incident on the vessel in question.

PN184

The second issue was a retraction of the assumption. The company denies that assumptions were articulated in the way that are asserted and even if that was to have been the case they hadn't been acted upon and there is no call for attracting those and the company said there is no reason for an apology to be given in the circumstances. The other issue which I understood to be pressed by the union is for a recommendation by the Commission to modify the - to recommend to my client to modify the drill procedure and to express the view, that is your view Commissioner, that they have an obligation to do so to mitigate the risk.

PN185

In my respectful submission that is akin to making a declaration as to the proper meaning of the marine laws. We would say that that is not something the commission would entertain even if it had jurisdiction to do so. We say with respect the Commission wouldn't have such jurisdiction. It also would involve the Commission forming a view as to the interpretation of the marine orders in question and whilst that might be a matter that the Commission would be minded to do ultimately if the matter proceeded there is nothing before the Commission today which in my submission would permit a full and proper consideration of those marine orders.

PN186

So we say in respect of the matters being pressed the Commission wouldn't entertain those things. I think lastly the union pressed for a finding of the existence of an industrial dispute. Based on what we've heard from the union to date in my submission there would not be an industrial issue within the meaning of the Act. These dispute issues and the way they are articulated are concerned only with three individuals on a particular vessel in a particular port on a particular day and the union has not articulated the alleged dispute in a way that extends beyond that particular set of circumstances.

PN187

Nothing has been put by the union to suggest in any way that the issues somehow are forwarding the extended operation of the Act in section 5, so we would say there is no basis for the Commission to find a dispute given the characterisation of what is alleged to be in dispute.

PN188

THE COMMISSIONER: Just because there are only three persons who are involved why wouldn't the commission be able to find that for example the first matter suggested to be in dispute is that the union seeks that engineers or these engineers are able to refuse such drills in the manner required by the company and the company, I assume do not agree to that demand. That is, the union says people can say no and the company says, no they can't, why isn't that capable of being an industrial issue.

PN189

MR MEEHAN: In my submission that's not how the dispute is being characterised by the union today given the relief they are seeking by way of recommendations to resolve the alleged dispute. They say they're confined to withdrawing specific instructions, retracting assumptions in relation to specific people and issuing an apology and if they are remedies that would settle what is alleged to be the dispute then in my submission it's certainly not a dispute characterised in the way the commission .....

PN190

To address more directly the Commission's question, that dispute in my respectful submission would be a question of law. That is, whether or not the employees concerned are permitted to refuse taking a drill. It's not something that's properly an industrial matter in my submission, just a legal question.

PN191

THE COMMISSIONER: What's the legal question, the appropriate interpretation of marine order 21.

PN192

MR MEEHAN: Yes, indeed, and if I could develop that it would be my submission that the Commission couldn't settle such a dispute by creating any rights because the rights are established by the marine orders and the employees concerned either comply with marine orders or comply to add in, likewise for the company. They have either act in a way that's consistent with the marine orders or they haven't.

PN193

THE COMMISSIONER: It's still a little bit complex Mr Meehan. Does part of what you say go to whether or not the Commission is capable and indeed prepared to settle the dispute in the terms sought. It may be that goes to whether or not a dispute can be found but that's the tricky part. But that's the first part.

PN194

MR MEEHAN: Might I say this, Commissioner: it's been conceded today that the Commission - I withdraw that. My understanding is its been suggested today the Commission would not be empowered to arbitrate the matter and I can't recall whether that was put on the footing that the certified agreement would not ..... power and that may be put because this is not a matter arising under the agreement but if it's being put the Commission could not otherwise arbitrate it would follow in my submission that the Commission would not need to make any finding of an industrial dispute. The Commission would only be invited to conciliate and there is preparedness to do that.

PN195

THE COMMISSIONER: The Commission is quite apart from the agreement. If a dispute exists the Commission is capable of settling that by arbitration. Now, that's very much subject to - if it has the power it's very much subject to the wage fixing, well, the principles of the Commission and there are inhibitions and provisions such as section 89A, all of those things may very well indicate to the Commission or direct the Commission to cease and desist. I understand that but if an industrial dispute can be found, and can be at least in theory capable of being settled, can't it.

PN196

MR MEEHAN: Yes, Commissioner.

PN197

THE COMMISSIONER: What you say is there can't even be a dispute found.

PN198

MR MEEHAN: Based on the way it is characterised before the Commission today, yes.

PN199

THE COMMISSIONER: Yes, thank you Mr Meehan. Mr Christiansen, what do you say, particularly about the last bit, about whether in fact there is a dispute. I am a little bit confused as to the difference as to what relief you seek and the dispute.

PN200

MR CHRISTIANSEN: First, can I draw a little analogy because there was a matter about nine years ago that went to marine orders and there was a very real dispute. It became a very substantial industrial relations issue for the whole industry. I am trying to remember the name of the Commissioner who was dealing with it and it escapes me for the moment, but he found that the matter was an industrial matter even though it was advanced at the time that because this went to marine orders it was a matter for government, this was a matter for the Department of Transport and this was a matter for the Australian Maritime Safety Authority.

PN201

Our issue was how that affected our members in their employ. Our issue was how that affected the employment relationship between these people as employees and their employer. Now, everything as to the lifeboat drill and everything goes if you like to the circumstances in which a certain set of facts occur. Everything that goes to the marine orders is, if you like, the presumed justification for why the company through the Master acted as it did.

PN202

But that's not the substance of the dispute, they are justification for acting in a manner that ended up with their representative threatening the employ of my members. Essentially saying, do this task or X, Y, Z. That is the substance of this dispute. Why their man formed that view and acted in accordance with the instructions will be a matter for them to detail and a matter for us to say we believe that the marine orders allow you a discretion to do otherwise.

PN203

So it's no good them putting up their defence by, he acted like he did because he thought he had no choice because he thinks the marine order 25 is all there was. We say there is also marine order 21 which we will get to when time permits, as I said, in great detail. We say, therefore, that the substance of this dispute is that the company through its worksite manager, as it were, the Master, has given an instruction, had people on safety grounds say there are adequate reasons why we would form the view that that procedure with us in that boat, up and down, is not safe. That was accepted by the company's on site senior manager at the time, accepted as reasonable. So right there and then when from that point on, regardless of marine orders - - -

PN204

THE COMMISSIONER: The trouble with that is that there is a limit to how far we can be assisted by Mr Ireland because if the company was right about the operations of marine orders then the company, whether it be a local manager or the chairman of the company can't get out of marine orders merely because of their particular opinion. So there's a limit to how far we can take - Mr Ireland can assist.

PN205

MR CHRISTIANSEN: That goes to a question about, if you like, that's their defence, that is, that their defence should be put up as assume the defence to be correct and therefore don't find that a dispute exists. We would never get any dispute in the Commission if these things - - -

PN206

THE COMMISSIONER: Is the dispute between you and Teekay or you and AMSA or you and marine orders 25 and 21?

PN207

MR CHRISTIANSEN: Between us and Teekay. It goes to the actions of the company, not the reasons for them, that's their defence of their actions. We haven't come here to bring a matter between us and someone who is in their employ, we have an issue between the employees and the employer as to the conduct of their manager.

PN208

They say they are defended in their action by section 25.3.3.3 of marine order 25. We say marine order 21 gives a clear discretion as to what is considered to be safe and appropriate. We say that is the kind of discretion that allows of people to say, well, what are we trying to do here, we're trying to test this boat in the water. It allows us to have regard and put evidence in front of you as I appreciate we haven't yet had the opportunity to do about those incidents on which our members and Mr Ireland relied in forming the view that there is a problem.

PN209

There is a problem with that function and that problem dealing with that in accordance with your safety management systems would lead you to form the view that it is mitigate the risk. You don't actually have to get in the boat until we've got it in the water. Now we say that there is a dispute between ourselves an Teekay in relation to these three employees on the ship Seacap. We take it no further than that. If a similar dispute arose next week on another Teekay vessel or anyone else's vessel we would deal with that when that arises.

PN210

We are not capable of raising a dispute against AMSA even if we wished to. We have no issue with AMSA because in our view, AMSA have already deftly dealt with the issue by making quite an old bit of regulations SOLAS article 19 reflected word for word in marine order 25. They have quite deftly put the onus for safe operation of that on the hands of the company and masters and chief engineers etcetera, anyone in charge of any part of the workplace on them by saying, but marine order 25 is also subject to your safety management system.

PN211

THE COMMISSIONER: I don't want to cut you off Mr Christiansen but my tendency is to adjourn proceedings and invite the parties to put further material to the Commission in writing in respect of what is the alleged industrial dispute that you say exists at the proponent of the claim or of the dispute says exists because it seems to be that until we can identify that and the Act requires that such be identified, it makes it difficult to move to the next step. The easiest thing if it is never controversial is for the Commission to assume what you've said, put it in some kind writing and proceed to deal with the matter including hearing as to why it shouldn't be dealt with but Mr Meehan flags certain concerns about that and therefore one needs to be careful how we proceed.

PN212

I'm not sure that some of the matters suggested to be in dispute are capable of being matters in dispute but some of them may be and the way you've partly characterised it seems to indicate a possibility but I think in the circumstances my tendency is to invite such written submissions including quite specific wording from your organisation indicating what any draft dispute findings should look like as far you are concerned and have the other side, including the intervener, indicate their view either in support or to the contrary. How do you feel about that Mr Christiansen?

PN213

MR CHRISTIANSEN: Sir, could I just - I am clear on the particular words that we seek to redraft re a dispute finding, you said that you would seek written material from the parties, is this in relation just to the question of the finding of dispute?

PN214

THE COMMISSIONER: Yes. It may be very brief. You might say well it is brief thing, it is clear, this is what we seek - - -

PN215

MR CHRISTIANSEN: No, I take your point, yes.

PN216

THE COMMISSIONER: Now, true it is you might look at some of the background but I don't know if that is necessary. We don't need to know what happened on 30 March whenever it happened, it is more what happened on 3 April or indeed outside of that particular event. That is how I would see it and I was looking at - giving the time, an ability to come back and provide that material in let's say 10 days to 2 weeks.

PN217

MR CHRISTIANSEN: Sir, again, I'm just trying to be clear as to how we would proceed beyond that point if you formed the view that a dispute does exist. We would come back before you for submissions.

PN218

THE COMMISSIONER: Well I think that perhaps if the material was put in writing and had an ability to, well, both side, all of the parties were able to see it, it would be listed for hearing in respect of the formal position as to whether or not a dispute should be found and how that dispute if it is found, how it should be characterised.

PN219

MR CHRISTIANSEN: My point was that if you were going to seek full submissions in writing as well then (1) we would need more than two weeks and (2) there would be an awful lot of exhibits and it is probably - - -

PN220

THE COMMISSIONER: Just for the dispute finding?

PN221

MR CHRISTIANSEN: No, no, if we were to go beyond that in writing. So if I understand correctly, you seek written material in relation to dispute finding within a period of two weeks. We would have no difficulty with that.

PN222

THE COMMISSIONER: I would consider that - Mr Meehan do you have any views or so?

PN223

MR CHRISTIANSEN: Sir, could I just say one thing, in relation to a four day Easter break, could we perhaps make that three weeks?

PN224

THE COMMISSIONER: Well I was suggesting listing the matter on either Monday the 12th or Friday the 16th.

PN225

MR CHRISTIANSEN: Sir, the only thing I would say is that Mr Parmenter advised me, I appreciate that he was under no obligation to do so but he advised me some 15 minutes before these proceedings that he had brief legal counsel. Therefore today, whilst it is not so much that the arguments that per se are unanticipated but I think it is appropriate also by what you say as to particular wording that it would be wise for AIMPE to seek our own legal counsel. Given the Easter break we would ask for three weeks rather than two weeks.

PN226

THE COMMISSIONER: Right, there is not a problem with that but I am talking now about the date, putting it in written form or in some kind of written form is just so the sides are clear exactly what you say the dispute is, the other side can react, as opposed to how you say the dispute should be settled which is the three pronged approached, I'm not sure whether they are the dispute as well, that's why I'm not quite clear. I was thinking, as I said, either 12 May or 16 May or beyond. How do you feel about that first of all you Mr Christiansen?

PN227

MR CHRISTIANSEN: Perhaps if you could just hear from Mr Meehan while I gather my thoughts.

PN228

THE COMMISSIONER: Mr Meehan?

PN229

MR MEEHAN: That's a process - - -

PN230

THE COMMISSIONER: And you are happy to respond in some written way to what the other side might put?

PN231

MR MEEHAN: We can do. I would apprehend that would only be a limited response - - -

PN232

THE COMMISSIONER: Well it might - - -

PN233

MR MEEHAN: - - - and we talked about it in submissions.

PN234

THE COMMISSIONER: Thank you.

PN235

MR MEEHAN: Can I also say Commissioner, my client doesn't discount the possibility that there should be further discussions in the interim. There is obviously an issue there and we say it effects the industry in the sense that there are regulations that apply or orders that apply that throughout the industry. There are avenues for progressing the matter other than each party just going away and formalising this process.

PN236

THE COMMISSIONER: Yes, Mr Wydell I haven't heard from you but I think you're going to have to fit in with the time frame, is that okay with you?

PN237

MR WYDELL: That's no problem, sir.

PN238

THE COMMISSIONER: Thank you. Yes, Mr Christiansen?

PN239

MR CHRISTIANSEN: Sir, I've recalled the matter I wish to raise, yes the other thing was about the three weeks, I wonder if you could ask that the people organising the transcript were fairly speedy in relation to providing that electronically so that would obviously assist putting the matter in the hands of counsel?

PN240

THE COMMISSIONER: Yes.

PN241

MR CHRISTIANSEN: I'm in your hands with relation to those dates sir.

PN242

THE COMMISSIONER: Why don't we make 9.30 on Friday 16th, is that okay with you Mr Meehan too?

PN243

MR MEEHAN: That Commissioner is for hearing as to the question of whether there is a dispute?

PN244

THE COMMISSIONER: Yes, and if it is what kind of dispute it should be characterised as or the wording is. I would ask that by perhaps Wednesday 7 May AIMPE would provide to the other parties including the intervener and the Commission a written outline or position that it says in relation to the dispute finding and by perhaps Tuesday the 13th the company and Teekay separately, provide to AIMPE and each other its view which both sides of course will elaborate on on Friday the 16th.

PN245

I must say you anticipated what I was going to say, Mr Meehan, that given that the 16th is only about the dispute finding this matter or this litigation may have a long way to go if the Commission has a role to play. There would necessarily be further hearings as to whether it has powers in any way to settle the dispute and most important of all and perhaps the most lengthy proceedings would be whether in fact it should exercise any discretion if it did have such a power and to do so may very well be inviting the Commission to revisit how all this lifeboat exercise is carried out.

PN246

It may be somewhat time consuming but in any case it may be that we don't get to that because it is not appropriate for the Commission to do so. It is a long way round saying that if in fact it can be a way of resolving the concerns of the union as well as the imperatives of the legislation the parties should explore that. If in fact it needs the assistance of the Commission again that might need to be considered. I would propose adjourning then to that date for now unless I'm advise to the contrary.

PN247

It would normally be my practice to ask that a company not exacerbate the situation by doing certain things and while I certainly would ask that the company not - I withdraw that. In the light of what seems to be prima facie a direction by the legislation to the employer to do certain things like have people participate in drills in a certain period then my only observation is if it has to do certain things and it involves those two persons then I guess it has to do what it has to do.

PN248

If there is a way of doing it in a way that doesn't exacerbate what is possibly an industrial dispute between the parties at this stage well that would be welcome but as I've said, the Commission is not suggesting that the company breach any of what it sees and what the Commission sees at least prima facie certain obligations. Anyway until the 16th we will now adjourn. Yes, Mr Meehan?

PN249

MR MEEHAN: Might I just say Commissioner I am instructed to put on the record the company doesn't intend taking any action in respect of the engineers arising out of the incident if I can describe it that way, that has already occurred. Not to say going forward - - -

PN250

THE COMMISSIONER: Yes, that's right, I'm only concerned that you need to do certain things every month or every three months and that may occur well if it can be softened a little bit good and well but on the other hand do what you have to do. We will now adjourn thank you.

ADJOURNED UNTIL 9.30 AM, FRIDAY, 16 MAY 2003 [1.15pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AIMPE 1 AMENDED DISPUTE NOTIFICATION, MARINE NOTICE 17 OF 2002 AND LETTER TO THE COMPANY OF 3 APRIL PN28
EXHIBIT #AIMPE 2 STATEMENT FROM PETER SALTER PN41
EXHIBIT #AIMPE3 STATEMENT OF MR LOCKWOOD PN100
EXHIBIT #AIMPE4 STATEMENT OF MR SPENCE PN100