C0092/999, Transcript of Proceedings [2003] AIRCTrans 2142 (6 June 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C No 00929 of 1999
C No 00946 of 1999

OFFSHORE INDUSTRY (COMPENSATION FOR
LOSS OF CERTIFICATE OF COMPETENCY)
AGREEMENT 1983

THE MARITIME INDUSTRY
SEAGOING AWARD 1981

Reviews under Item 51, Schedule 5,
Transitional WROLA Act 1996
re award simplification

SYDNEY

10.36 AM, TUESDAY, 20 MAY 2003

Continued from 18.3.03

Adjourned sine die

PN237

THE COMMISSIONER: Yes, if I could have the appearances again, please?

PN238

MR M. BYRNE: If it please the Commission, for the Australian Institute of Marine and Power Engineers.

PN239

MR J. WYDELL: If the Commission pleases, solicitor in the employ of the Australian Maritime Officers Union.

PN240

MR T.GREEN: If the Commission pleases, for the Australian Shipowners Association and its members.

PN241

THE COMMISSIONER: Yes, Mr Byrne?

PN242

MR BYRNE: Thank you, sir. There are two matters before you today and I understand that there has been some communication from Caccamo of Australian Mines and Metals Association in relation to the offshore matter.

PN243

THE COMMISSIONER: Well, the offshore matter - - -

PN244

MR BYRNE: We might be able to short circuit the process, Mr Commissioner. of you could just hear me on that briefly. Mr Caccamo has earlier in the process, I think Friday night he emailed me with some proposed changes for the brief that I'd sent him and which was the draft that we'd discussed with Mr Green 10 days or more ago.

PN245

Then Mr Caccamo has last night emailed some submissions for proceedings today. Mr Caccamo's submission says:

PN246

With the exception of the provision outlined below employers do not oppose the existence of the above award in the form suggested.

PN247

It goes on to say:

PN248

The area of disagreement relates to clause 5.2.

PN249

The clause 5.2 is reproduced in both of the drafts that are before you in these two matters and as it currently stands reads:

PN250

The employer may by consent make a payment in lieu of the above notice period prior to termination of the employment. In the event of no agreement then the officer will be retained in employment for the full term of the notice period.

PN251

You have observed by reading the material that has been presented to you, or forwarded to you following the last hearing, that the foundations of the award have been changed to a notice of termination provision with an option for payment in lieu of notice which the parties are all happy with and which the parties I think unanimously submit meets the requirements of the Workplace Relations Act section 89A.

PN252

5.2 is therefore a new type of provision necessitated by the changed foundation of the entitlement and it was a provision drafted by myself in order to attempt to facilitate a consultative co-operative resolution of any claims. Of course contested claims there is a process for dealing with contested claims and any contested claims would go before the board of administrators as indicated in clause 6. However, 5.2 was intended to make a consultative consensual process clear to all the parties.

PN253

Mr Caccamo's submission really is to ensure that the employer retains all prerogatives if you like in the matter. 5.2 proposed by Mr Caccamo is the above notice period may be given or a payment in lieu of that notice made. I think Mr Caccamo's point is to retain as managerial prerogative the decision-making power over this issue, whether the notice is given or the payment in lieu made.

PN254

Sir, this has been a matter of some discussion between the parties before you at the bar table immediately prior to this matter commencing this morning. Certainly I've indicated to my colleagues that my experience in the handling of these claims is that the individuals concerned are generally not seeking to, as Mr Caccamo would have it, not seeking to continue their employment for up to 2 years longer in the employer's business but rather are seeking the finalisation of a set of circumstances which has disrupted their life and career plans. So my experience of these matters, if I could make this submission from the bar table, sir, is that most applicants want the matters done and dusted, they want them dealt with and finalised as quickly as possible and are very much happier when that is done.

PN255

I am trying to indicate, sir, that my expectation, my anticipation, is that there would not be any members at all who would want to extend their employment in the circumstance where they are no longer entitled by regulation to go to sea.

PN256

However, that being said and given that there are provisions in clause 6 of both agreements for the hearing of matters that are contested so that if an employee for instance did not think that his employment should be terminated but rather that he should be retained in employment under the notice of termination provisions for up to 2 years then that employee would have the right to bring the matter to the union and the union to take it to the board of administrators and have the matter heard there and the outcome would be the outcome of that process.

PN257

So, the Commission may be surprised to hear it, we would accede to the offshore award being varied. The draft that has been presented to the Commission being varied in the way that Mr Caccamo suggests. In which event we would submit that the Commission has no other material before it which would prevent it from making that particular award today and for the sake of consistency we would submit that the Commission could modify the draft shipping award that's been provided prior to today's proceedings so that it is in the same wording as 5.2 of the offshore award and make the shipping award as of today's date as well. In which case these matters will be finalised and the file could be closed.

PN258

THE COMMISSIONER: So, in lieu of what's written there at 5.2 which is two sentences, it would instead read:

PN259

The above notice period may be given or a payment in lieu of notice made.

PN260

MR BYRNE: Yes, sir.

PN261

THE COMMISSIONER: Well, Mr Byrne, before you sit down, I just indicate to you that Mr Caccamo wanted to heard today by video facility or by telephone facility. That could not be effected in any of the available court rooms and so it was indicated to him that in relation to the offshore award nothing would occur today without him having an opportunity to be informed of that. Now, in the circumstances that you've explained it seems to me that there will be probably no problem with Mr Caccamo and we will contact him. So, we can say provisionally it looks as if the variations to both awards can be effected in accordance with a draft order slightly changed, as you said, as you both say, and to operate either from today or tomorrow depending on if we can contact him. I just thought you should know that.

PN262

MR BYRNE: Sir, I should bring a couple of other points to your attention as well. In the email exchanges between myself and Mr Caccamo in recent weeks he's indicated to me that he's desirous of another couple of minor changes to the draft that we've provided. One would be to change the date from 2002 to 2003, a matter which we do not contest.

PN263

He also sought the deletion of the employer titled Maersk Supply Services Australia Proprietary Limited, no longer operating in the industry and we certainly don't have any problem with the deletion. We don't think the award is affected one way or the other by including or not including Maersk Supply Services Australia Proprietary Limited.

PN264

We have disagreement, however, in relation to the definition of illness or injury. As the Commission shall see from reading the draft that I've presented:

PN265

Illness or injury shall include but not be limited to a disease, disability, disorder or incapacity.

PN266

Mr Caccamo proposed to me that that should have the words "but not be limited to" deleted. So that it would then read:

PN267

Illness or injury shall include a disease, disability, disorder or incapacity.

PN268

My reply to him in that matter was to reject his proposal. The words that I've reproduced in the draft are the identical words from the original 1983 agreement and we say that they should stand without modification. So that it would continue to read:

PN269

Illness or injury shall include but not be limited to a disease, disability, disorder or incapacity.

PN270

I note that in his latest submissions, email, with the submissions attachment, he did not pursue that matter so I make an assumption that he's accepted the position that I put to him some days ago that the definition of illness or injury should stand as per the existing agreement. Nothing further, sir.

PN271

THE COMMISSIONER: Yes, Mr Wydell?

PN272

MR WYDELL: If it pleases the Commission, I'm just taking a few moments just to read something over and sort something through my mind so perhaps you might like to speak to Mr Green.

PN273

THE COMMISSIONER: Yes. Yes, Mr Green?

PN274

MR GREEN: Thank you, Commissioner. Having had the opportunity to talk to Mr Byrne just prior to the hearing this morning we want to concur with the draft proposed by Mr Caccamo in relation to 5.2. As Mr Byrne has pointed out in the original 1983 agreement the definition of illness or injury is what is proposed in the original 1983 agreement so we concur with that as well given it is in the original draft. We also submit on that basis that the Commission consider certifying the agreement with, of course, the exception of 5.2.

PN275

THE COMMISSIONER: Yes, thank you Mr Green. Mr Wydell?

PN276

MR WYDELL: Mr Commissioner, I might take just a few moments to just read this over. I just want to get something straight in my mind before, I hope you don't mind, do you?

PN277

THE COMMISSIONER: No> We will adjourn for 10 minutes.

SHORT ADJOURNMENT [10.50am]

RESUMES [11.00am]

PN278

THE COMMISSIONER: Yes, Mr Wydell?

PN279

MR WYDELL: Thanks, Mr Commissioner, for the opportunity to just consider that for a moment. What I would propose and I don't believe Mr Byrne or Mr Green would have any problem with this is at the end of Mr Caccamo's proposed 5.2, we would amend his 5.2:

PN280

The above notice period may be given or payment of lieu of that notice made prior to termination.

PN281

So if those three words are added to the end of made, notice made prior to termination and I understand Mr Green doesn't have a problem and I understand Mr Byrne doesn't have a problem and I guess if you put it to Mr Caccamo and just see if he has a problem with that.

PN282

THE COMMISSIONER: Well, I don't understand what it means. I can understand the above notice period may be given prior to termination but payment in lieu of that notice prior to termination, what does that mean?

PN283

MR WYDELL: Well, it just means exactly that, sir, payment in lieu is made prior to the letter of termination being handed over. So I guess what he'd say is here is the payment, there is your termination. As I say, I don't think it fundamentally changes it but I think it sits better with the original concept.

PN284

THE COMMISSIONER: What you mean is you don't want people waiting around for three years to get their money?

PN285

MR WYDELL: Well, that's one scenario that I hadn't envisaged but I don't think they would do that but it's possible, but I don't think anyone would.

PN286

THE COMMISSIONER: Well, I suppose they'd be entitled to be paid while they waited to be terminated.

PN287

MR WYDELL: As I say, I just feel that that better fits with the original agreement taking into account Mr Byrne's proposed 5.2, taking into account Mr Caccamo's proposed amendments to that one, I think that better fits the original concept.

PN288

THE COMMISSIONER: Yes, thank you, Mr Wydell. In that break, the Commission was able to contact Mr Caccamo, indicate to him the position of the parties and yes, he understood that while the 1993 and the Maersk references would be corrected because there was no problem with that, he is not pressing the deletion of the words "but not be limited", Mr Byrnes and, of course, does not now seek to be heard in respect of 5.2 because you've adopted his position.

PN289

However, we now have these additional three words and while that may not be a problem, I had indicated to him that you would forward the agreed draft because there are some other changes to him. I would ask, Mr Byrne, that you now, if you're forwarding those drafts or contacting at least Mr Caccamo as well as the others, make reference to those three additional words and, of course, if he has a problem with that, well, then, we need to hear from him but I trust that that won't change it. That was my only reluctance to your words, Mr Wydell, not that I saw any problem with them but it did mean a further revisit to Mr Caccamo.

PN290

The other too, of course, he sought to put on record which I think is clear is that the words, the above notice period may be given or a payment in lieu of that notice made, he takes that as meaning that that is a discretion of the employer and I think that that is the case. One sees it flows from 5.1. It is the employer that is taking the action of giving the notice and it is the employer it remains, no need to say it, that determines whether a payment is to be given or a payment in lieu of that notice made.

PN291

Now, as I said, subject to those three words being agreed to and it looks likely it would, the Commission has before it two consent instruments or one consent instrument in both matters that are before me. The Commission has considered that. It has particularly noted the requirements of the Workplace Relations and Other Legislation Act as well as the specific provisions of section 89A and the Commission is satisfied that the proposed awards are in accordance with the legislation and as a consequence, it is proposed that again subject to no surprising events, that the awards will be made reflecting drafts to be prepared by the institute and that those awards will take effect from the first pay period to commence on or after 20 May 2003 and they will remain in force for a period of 12 months. On that basis, these proceedings are now adjourned. Thank you.

ADJOURNED INDEFINITELY [11.05am]