C2002/813, Transcript of Proceedings [2003] AIRCTrans 4265 (29 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2002/813
C2002/4927

MARITIME INDUSTRY SEAGOING AWARD 1999

Application under section 113 of the Act
by the Australian Institute of Marine and
Power Engineers and Another to vary the above
award re respondency

Application under section 113 of the Act
by the Maritime Union of Australia and Others
to vary the above award re respondency

SYDNEY

10.40 AM, WEDNESDAY, 10 SEPTEMBER 2003

Continued from 2.6.03

PN2111

THE COMMISSIONER: Yes, I will just take the appearances again, please.

PN2112

MR W.G. McNALLY: If the Commission pleases I seek leave to appear for the Australian Institute of Marine and Power Engineers and the Maritime Union of Australia.

PN2113

MR J. WYDELL: If the Commission pleases, Wydell, spelt W-y-d-e-l-l, initial J. and I appear for the Australian Maritime Officers Union.

PN2114

THE COMMISSIONER: Yes, thank you.

PN2115

MR D. LLOYD: May it please the Commission I continue my appearance with MR DUFFY for CSL Pacific Shipping Incorporated.

PN2116

THE COMMISSIONER: Yes, thank you. Yes, Mr McNally, this was listed I think at your request, well, the Commission was going to list any way, but - so where are we?

PN2117

MR McNALLY: There has been a bit of progress. I understand that there has been discussions between the Australian Maritime Officers Union and company representatives, and the Australian Maritime Officers Union seek an adjournment of the proceedings in respect of their application. We don't oppose that. In relation to the other two matters, I have prepared a document which is little more than a convenient reminder for us to the relevant passages of the transcript.

PN2118

THE COMMISSIONER: Before you go on, these were one application, weren't they?

PN2119

MR McNALLY: They were joined. What happened was the proceedings in respect of the CSL Pacific were launched, and then the - - -

PN2120

THE COMMISSIONER: Yes, I understand that, but how do we - well, we probably get to it but I took it you mean the AMOU application.

PN2121

MR McNALLY: Oh yes.

PN2122

THE COMMISSIONER: Well, there isn't an AMOU application as such, is there.

PN2123

MR McNALLY: No, no, but the - - -

PN2124

THE COMMISSIONER: But any way we might get to that in due course.

PN2125

MR McNALLY: Well, the proceedings insofar as they - there is a difference, and it has been in the back of my mind all along between the deck officers, the engineers and the seamen in respect to certain matters that were discussed. I think one of the differences is that the deck officers are, in fact, still paid salary on the two ships. I am not too sure about the engineers' position, and they may well be paid salaries too. There is a closer margin to close in respect of Mr Wydell's members than perhaps Mr Williamson's members and the others, but we will work on it.

PN2126

What we say in short should happen is that we should return to paragraph 76, P76 of the transcript, 31 October 2002, when you were in the middle of making an order - you sir, I am sorry, were in the middle of making an order that the company be made respondent to the award, and Mr Hatcher who had previously assumed and then made application that the proceedings be stood over until the High Court appeal be disposed of, no doubt did some quick thinking while you were making the order and jumped to his feet and said that he wanted to rely on section 111(1)(g). And I think you recall the event.

PN2127

We have been through that process, and that was in March or in December last year. His application that the dispute be - no longer be dealt with, the summary of the application he made is in paragraph 4 of the submissions, as being disposed of. And that is why we say we get back to where we were on 31 October. We are a bit flexible. I did communicate with Mr Lloyd as to what he thought the position was. He thought the position was that we had to file another application, and I wasn't too sure whether that was right.

PN2128

So as far as we are concerned we are here to find out what the position is in relation to Mr Lloyd's thoughts on it, or his clients, his representatives' thoughts are on where we go forward. Our thought is that the company should disclose what award, if any, they claim should be put in place. There is no mystery surrounding the ambitions of the Maritime Union that I represent, they seek an award as close as they can appropriately get to the Maritime Industry Seagoing Award.

PN2129

If I could reserve the right to say some more after we have heard what Mr Hatcher's thoughts are, if that is a convenient course, sir.

PN2130

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

PN2131

MR WYDELL: Yes, thank you, Commissioner. I think we wrote to you late yesterday.

PN2132

THE COMMISSIONER: Yes.

PN2133

MR WYDELL: And I think we indicated what our position was, and to say no more than that we are having discussions with CSL at a very preliminary stage, and in an attempt to further those discussions we have asked that the matter be adjourned so as those discussions can continue. And at that stage that is all that I would say. Thank you.

PN2134

THE COMMISSIONER: What - do you have an estimate as to how long you will seek the matter adjourned before it is either dealt with or struck out?

PN2135

MR WYDELL: Sorry, Commissioner.

PN2136

THE COMMISSIONER: Well, you have sought to have it adjourned, well, are we talking about an adjournment to allow discussions that may take place in one way or another, successful or otherwise, over a period of two weeks, or two months or what?

PN2137

MR WYDELL: Oh I wouldn't like to put a time frame on it. At this stage I would say that the matter be adjourned indefinitely, and I have no doubt that once the parties - they are not keen to have a number of meetings - get a feel for where they are going, everyone will soon know whether they whether some settlement is possible, and the parties can communicate that to the Commission at the appropriate time.

PN2138

THE COMMISSIONER: Yes.

PN2139

MR WYDELL: And the Commission can then relist the matter.

PN2140

THE COMMISSIONER: Yes, okay. Yes, Mr Hatcher?

PN2141

MR HATCHER: If it please the Commission, might I firstly deal with my friend, Mr McNally's document, just by saying that that was handed to me a minute or two ago, and it appears to me to be rather argumentative and certainly contentious. We reserve our rights generally in relation to it. If Mr McNally wishes to be heard in saying that it adopts portions of the transcript, it is no doubt very selective portions of the transcript that are adopted, as is reflected in the submission that he put to you, Commissioner, about the section 111(1)(g) application, if one has regard to the transcript on the day in question.

PN2142

I had in initially presenting the case indicated that it was my client's intention to put a section 111(1)(g) application in at the appropriate time. I rose to my feet simply to remind the Commission that that had been put, and the Commission, of course, acceded to that course being followed. If it please the Commission, the application that initiated these proceedings, and it was called on today, was an application by the unions to vary the Maritime Industry Seagoing Award by inserting my client in the list of respondents.

PN2143

Now, my client has taken a number of jurisdictional objections to that being done, one of which the Commission will recall was that the Commission doesn't have any power to make any general award making power - any general award, any general power to regulate the conditions of employment. It only has a power to settle industrial disputes or in the wider sense in the Maritime Industry industrial issues. That argument apparently found favour in the Full Bench on the question of jurisdiction, because the Commission found the appropriate jurisdictional vehicle to be the finding of an industrial issue in the confines of which the application might be heard.

PN2144

My client then advanced its 111(1)(g) argument in relation to the industrial issue generally, and it was, I think, and I don't mean to be presumptuous in characterising the Commission's decision in this way, but as we apprehend the decision, the Commission has found that in respect to the application that was advanced by the unions, my client's application was successful, that is the application that my client be added to the list of respondents was dismissed, pursuant to the provisions of section 111(1)(g), but the Commission was not satisfied at this stage that that was sufficient to dispose of the jurisdictional vehicle, the industrial issue.

PN2145

And so one has remaining a jurisdictional vehicle for the unions to advance such claims as they would, subject to the arguments that we would wish to put in opposition, but there is no application left where the union identifies exactly what it is they would ask the Commission to do. The only application they had was an application that we would be added to the list of respondents, and that application has been dismissed. We acknowledge that on the basis of the Commission's decision, which hasn't been appealed, there remains a jurisdictional vehicle for the union to press further claims.

PN2146

We retain the arguments that we have put, as the Commission clearly envisaged, that no award should be made. But if the unions in the face of the Commission's decision, wish to advance the proposition that some award should be made, different to their initial application and on the terms of the decision different to MISA, the Maritime Industry Seagoing Award, then in my respectful submission our client is entitled to see what the terms of that application might be and consider how it would respond to that application.

PN2147

I don't mean to be too coy about it, I anticipate that my client's position will be to oppose any award being made, and I think that has been made relatively clear. But by the same token as has been put by the AMOU, my client is prepared to discuss matters, as it has been prepared to discuss matters from the outset of these proceedings with the unions. And I don't hold that out as having any particular magic attached. They are prepared to discuss matters. But to the extent that there is some application to be pressed within the jurisdictional vehicle of the industrial issue, my client is entitled to know what that application is.

PN2148

THE COMMISSIONER: Yes.

PN2149

MR HATCHER: If the AIMPE and the MUA wish to advance some application, we'd be content with appropriate directions being made for that to be filed, and then we'll be in a position to know what evidence we need to meet it, and appropriate directions can be made.

PN2150

THE COMMISSIONER: Yes.

PN2151

MR HATCHER: If it please.

PN2152

THE COMMISSIONER: Yes, thank you. Mr McNally, I'm a little bit attracted to the view that the unions did have an application to vary the award in a particular way. The other side objected to that, and the Commission has upheld its objection. However, the Commission has indicated that the characterisation of the dispute or the issue is still a matter that can be, or that should be dealt with by the Commission. So given that the industrial issue - I haven't got the exact words, but we all - we sort of - we know they are that the - if or in part the - what is contained in MISA should be applied to the particular employees, or those particular shifts. It's incumbent upon the applicants to indicate what they seek the Commission to do, or how that industrial issue is to be settled in full or in part, isn't it?

PN2153

MR McNALLY: Yes, I've got no difficult with that.

PN2154

THE COMMISSIONER: The other thing that strikes me too is that, particularly given the attitude of at least one of the parties, that I'm not attracted to set directions for hearings of this matter until I'm satisfied that there has been appropriate conciliation between the parties, and discussions.

PN2155

MR McNALLY: Well, the view we take - because we communicate with Mr Lloyd via email and correspondence, and occasionally we get on the phone - any conciliation so far as the two unions we're concerned with - I continue to be concerned with, is probably appropriate to have the assistance of the Commission in initial conciliations. The other matter that troubles me is that the anniversary of the Full Bench decision is fast approaching, and in order to hasten proceedings, we've got no difficulty in filing an amended application, or an application, if that's the way forward the Commission thinks appropriate, because we'll be very much guided by the Commission in that matter.

PN2156

But it just occurs to me that it may be of assistance to the progress of the matter if, at the same time as we prepare the application - which shouldn't take more than a few days - those representing the company, without necessarily conceding that an award should be made, prepare an award that they say should be put in place if an award is made, and then at least we've got the ambit of the areas in dispute and we'll know a little more about what the dispute is in relation to hours or salaries, and wages and overtime as distinct from salaries; whether the wages and overtime will apply to engineers; as well as the various other seafarers.

PN2157

There's different classifications on this ship than was the case, so the company could have a good, worthwhile input into what they see should happen to those, and that would then assist the Commission to start conciliation proceedings, which the parties no doubt can take up at some stage without the assistance of the Commission. But otherwise, we file the application, we come back, and we repeat today's performance and set a program. I mean, the application was filed in 1992, was it? 2001, I think one of them was filed - no, 2002, yes. Number 813. It did go to the High Court. We did go through 111(1)(g). We're anxious to get a position of finalisation, if the Commission pleases.

PN2158

THE COMMISSIONER: Yes. Yes, thank you.

PN2159

MR McNALLY: Could I just add this: that the filing of an application was only suggested to us two or three days ago, after we'd troubled ourselves to find out what CSL thought, so we weren't in a position to do it by today, but we did wish to get your thoughts on that.

PN2160

THE COMMISSIONER: Yes. I think what I propose to do is to - yes, sorry, Mr Hatcher, I didn't - I was inviting you, but you just stood there so - yes, sorry.

PN2161

MR HATCHER: Sorry, Commissioner, I didn't mean to interrupt you but I did want to respond to what Mr McNally has put. Certainly my client doesn't oppose discussions and doesn't oppose conciliation. The one matter that we would wish to put if the Commission is minded to direct the matter into conciliation, and I think the Commission probably has a statutory duty to do that, we would ask whether some other Member of the Commission might be made available for any such conciliation.

PN2162

That's just on the basis, Commissioner, that the Commission is well aware of the amount of material that was put before the Commission on the 111(1)(g).

PN2163

THE COMMISSIONER: Yes.

PN2164

MR HATCHER: It's all material that my client would wish to rely on in any further proceedings and it would seem a great expense and inconvenience to have to repeat all that in the unfortunate event that the Commission involved itself as presently constituted in conciliation and an application was made. So we would ask that if conciliation is to take place that another Member of the Commission be involved in that. In response to - that the Commission be constituted other than by - - -

PN2165

THE COMMISSIONER: Yes, I understand that.

PN2166

MR HATCHER: - - - the present Member. We make no criticism of the fact that an application hasn't been filed at this stage and if there was any decision to exist in what I had put then we withdraw it. It's just a matter of the Commission having listed the matter for directions. We were asked what we thought the appropriate directions were and we responded promptly. Commissioner, there's just one other matter of housekeeping that I ought to have addressed when I was last on my feet and that is the correspondence from the AMOU to the Commission my instructing solicitors haven't been favoured with.

PN2167

I don't suggest it's contentious but I would ask that if there are to be materials flowing between the parties and the Commission that we be provided with copies of it.

PN2168

THE COMMISSIONER: Yes. Well, perhaps Mr Wydell can - no, perhaps you do need to have the copies sent to us. We will make a copy in due course.

PN2169

MR HATCHER: Thank you, Commissioner.

PN2170

THE COMMISSIONER: What I propose to do is to direct or ask that the two unions that press the application at this stage, I'm not suggesting that the AMOU are not pressing it but they are certainly not pressing it at this stage, particularise or put a formal application as to how they consider the industrial issue should be settled or further dealt with by the Commission and that that could be effected by Friday the 12th.

PN2171

And if it's not done by then, well, I guess, as the applicant said it's in their hands. And that that be followed by - I direct that the parties, and that is the MUA, the AIMPE and the company, be directed to confer privately concerning the union's application and that the matter then be - will then be re-listed for further report-back. I'm looking at either - I was looking at the week of 29 September and either the 30th, the 2nd or the 3rd.

PN2172

MR HATCHER: 2nd or the 3rd would be convenient, Commissioner.

PN2173

THE COMMISSIONER: Convenient to you?

PN2174

MR HATCHER: Yes.

PN2175

MR McNALLY: Can we get it a bit earlier than the 29th?

PN2176

THE COMMISSIONER: You don't think it's going to take you that long to confer, Mr McNally? Well, I guess the parties will know whether there is a basis for further discussions between them. That's right.

PN2177

MR McNALLY: Well, we will get them done by Friday.

PN2178

THE COMMISSIONER: Well, I could deal with it on the 25th.

PN2179

MR McNALLY: I would imagine we would be in conference next week.

PN2180

THE COMMISSIONER: Yes.

PN2181

MR McNALLY: Which only goes up to the 17th, but I couldn't for the life of me think of Mr Hatcher talking to me for seven days or longer. I don't think it would take very long to ascertain a preliminary view. A preliminary view - - -

PN2182

THE COMMISSIONER: What did you say, sorry?

PN2183

MR McNALLY: I don't think it will take a week to arrive at a position.

PN2184

THE COMMISSIONER: Yes, I see. Well, I'm also available on the 22nd, 24th and 25th. How does that - - -

PN2185

MR McNALLY: We would take the earliest date possible.

PN2186

THE COMMISSIONER: Mr Hatcher? And I'm raising whether, in fact, you need to be involved because it may very well be Mr Lloyd or - because the discussions I'm envisaging I would have felt involved Mr Sorensen and Co rather than - but anyway, sorry.

PN2187

MR HATCHER: Well, they are more likely, Commissioner, to involve people other than Mr Sorensen.

PN2188

THE COMMISSIONER: I see.

PN2189

MR HATCHER: And I'm not sure that they can be done as quickly as Mr McNally envisages.

PN2190

THE COMMISSIONER: I see.

PN2191

MR McNALLY: Well, I don't know who we're going to be talking to and I know that we may get some sense into this.

PN2192

THE COMMISSIONER: Well, let's just - Mr McNally, let's just hear from Mr Hatcher.

PN2193

MR HATCHER: Commissioner, as to the earlier dates it's a matter for the Commission and, as I've said, we can do 2 or 3 October. I can't do 24 September or the 25th. The 22nd, I just suspect, is going to be too soon, but it's a matter for the Commission.

PN2194

THE COMMISSIONER: Yes. Yes, I do - I've heard what you've said, Mr McNally, but I propose to re-list the matter at 9.30 on Thursday, 2 October for report-back. And, as I said, in the meantime your side will have filed and served the application that you think ought be made. The further programming and dealing with the matter will then be dealt with on the basis of what is said.

PN2195

MR McNALLY: Can I - - -

PN2196

THE COMMISSIONER: Yes, Mr - - -

PN2197

MR McNALLY: Can I just say this. If there's going to be some idle time between now and when we come back again, because we won't need all that time, can we have a couple of days to settle our application?

PN2198

THE COMMISSIONER: Oh, yes. There's no problem with that, Mr Hatcher, is there?

PN2199

MR HATCHER: No, Commissioner.

PN2200

THE COMMISSIONER: No. Well, on that basis these proceedings are now adjourned.

ADJOURNED UNTIL THURSDAY, 2 OCTOBER 2003 [11.09am]