AG2002/5018, Transcript of Proceedings [2003] AIRCTrans 51 (7 January 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER RAFFAELLI

AG2002/5018

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LC of the Act
by Condreco Pty Ltd and Others for certification
of the Contract Dredging (Non-Propelled Dredges)
Enterprise Agreement 2001-2003

AG2002/5019

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LC of the Act
by Condreco Pty Ltd and Others for certification
of the Contract Dredging (Maritime) Enterprise
Agreement 2001-2003

SYDNEY

10.27 AM, TUESDAY, 17 DECEMBER 2002

PN1

JUSTICE MUNRO: These are matters AG5018 and 5019 of 2002. They have been listed together because they are both applications under section 170LC of the act for the certification of a multiple business agreement involving three companies and different employee organisation respondents, each lodged on 21 November in the case of AG5018 and on 22 November in the case of AG5019. They seek respectively the certification of the Contract Dredging (Non Propelled Dredges) Enterprise Agreement 2001-2003 and on the other hand the Contract Dredging (Maritime) Enterprise Agreement 2001-2003.

PN2

Could I have appearances? In asking for appearances, I note that there has been correspondence received from the Australian Institute of Marine and Power Engineers, a respondent to the first matter indicating that Mr Reid, the Queensland Branch Secretary is unable to attend on behalf of that organisation but supports effectively the certification of the agreement and their acceptance as multiple business agreements. Appearances, please?

PN3

MR D. DAVIES: If it please the Commission, I'm a consultant and I seek leave to appear on behalf of Condreco Pty Limited, Dredeco Pty Limited and Westham Dredging Company Pty Limited who are the employer respondents to both of the agreements. If leave is granted, Mr Lawson from Westham appears with me.

PN4

MR W. GIDDONS: May it please the Commission, I appear in matter 5019 for the Maritime Union of Australia and I'm also authorised to appear for the Australian Maritime Officers Union.

PN5

MR G.R. BEARD: If it please your Honour, I appear on behalf of the Australian Workers Union in AG2002/5018.

PN6

JUSTICE MUNRO: I take it there's no objection to the matters being heard together?

PN7

MR GIDDONS: No, your Honour.

PN8

MR BEARD: No, your Honour.

PN9

JUSTICE MUNRO: There's no objection to leave being granted to Mr Davies? Leave is granted, Mr Davies.

PN10

MR DAVIES: Thank you, your Honour. Your Honour, could I just mention for abundant caution, I have correspondence from Mr Reid of the Institute of Marine and Power Engineers in relation to both of these matters. I think your Honour only mentioned receiving correspondence in relation to one of them.

PN11

JUSTICE MUNRO: Yes, I'm probably in error on that score. Yes, I did notice only one, although the letter might have referred to both matters.

PN12

MR DAVIES: No, there were two identical letters, your Honour, with separate statutory declarations.

PN13

JUSTICE MUNRO: Yes.

PN14

MR DAVIES: Thank you, your Honour. Your Honour, the parties to these applications are no strangers to the enterprise bargaining process and indeed, both the employers and the unions represented in these proceedings have made previous applications to the Commission for approval of multi employer agreements and previous benches of this Commission have approved such applications. In relation to the Non-Propelled Enterprise Agreement, if I can use that shorthand, I note that there were approvals given by various Full Benches of this Commission in 1996, 1997, 1999 and a second agreement in 1999 in relation to multi employer agreements and in relation to the Maritime Agreement before you today, there were approvals in 1996 and 1997.

PN15

Your Honour, the key issues in our submission are detailed in paragraph 10 of my statutory declaration and that section of the declaration seeks to address the requirements of section 170LC(4) of the act, that is the public interest issue and I note in passing that the statutory declaration comments made by me are also endorsed by the declarations of each of the union parties.

PN16

Your Honour, from an economic point of view, the dredging operations in Australia are characterised by intermittent work which is contract driven and using expensive pieces of capital equipment, both in terms of propelled dredges and non-propelled dredges. As a consequence of the economics of the industry, it is reasonable to expect that employers who are covered by these agreements enter into joint venture operations between two or more employer parties. The economics of that on dredging projects are appropriate.

PN17

As a consequence of the fact that two or more employers may enter into joint venture operations, it is, in my submission, in the public interest that there is a need for uniformity in employment conditions and for that reason, we seek that the one agreement apply to three employers in the industry. We also point out that there is a small pool of experienced people in all classifications and there is also a high degree of mobility of employees in this industry.

PN18

Indeed, when dredging projects are not being carried out in Australian waters, it is not unusual for employees who have been involved in dredging work to work in other occupations between projects and when dredging projects occur, there is a need to mobilise those employees quickly back onto dredges operated by my clients. For that reason, we say that it is appropriate that there be a common set of salaries and conditions operating throughout the industry.

PN19

Equally we say that there will be some people covered by this agreement who will work for different dredging employers are different times and from that point of view, uniform conditions of employment assist with the mobility of skilled and experienced operators between industry employers. Your Honour, in terms of the technical aspects of the application in relation to section 170LT(8) for argument sake, the agreements both include in clause 7 procedures for preventing and settling industrial disputes and a respective section 170LT(10), both agreements specify a date to which the agreements will apply and clause 5 in both agreements indicate that the agreements will operate for a period of two years from 1 August 2001.

PN20

Your Honours and Mr Commissioner, we rely on the statutory declarations that have been filed by myself on behalf of the employers and officers of the various respondent unions who are respectively Mr Roberts of the AWU, Mr Groves of the AMOU, Mr Reid of the AIMPE and Ms White of the Maritime Union. I note in relation to another matter that has been before a Full Bench of the Commission, what I might refer to as the Master Grocers case, there was considerable debate by the Commission in respect of that matter concerning the Commission's attitude to approving multi employer agreements.

PN21

I'd seek to hand up a copy of that decision and in doing so I'd wish to address the Commission to contrast aspects of that decision from the matter currently before the Commission. Your Honours and Mr Commissioner, this was a decision of the Commission, Justice Giudice, Senior Deputy President Watson and Commissioner Gay on 4 December 2002 in the retail grocery industry and this decision, in fact, indicated that the Commission would not endorse a multi employer agreement in that case.

PN22

I trust in some respects I'm not tripping myself up by making these additional submissions but let me say this that in relation to - - -

PN23

JUSTICE MUNRO: You were on a winner up till this point, Mr Davies.

PN24

MR DAVIES: Well, perhaps I should conclude my submissions there, your Honour, and leave it at that point but I just want to emphasise two, perhaps three aspects of that decision which we say support our application in these matters. First of all, in paragraph 17 of the decision to which I've referred you, the Commission says where the circumstances are the same, all things being equal, the same outcome is appropriate and indeed for the reasons that I've outlined, we believe that it is appropriate to have a common outcome in relation to this industry.

PN25

In relation to paragraph 17 and 19, the bench in this case commented on the size of the employers and the numbers of them and, of course, the breadth of employees covered by or which the employers sought to cover by the agreement. In this industry, we have a few employers, three in fact. There are intermittent patterns of work, skilled and professionally qualified employees who at best, bearing in mind this is a contract driven industry, at best the average number of employees over the last two to three years between the three companies, that is the total employees covered by this agreement number no more than 150.

PN26

So from this point of view, your Honour, we believe that it is in the public interest that the agreements be certified as multi employer agreements, that you can rely on the statutory declarations that have been filed by all of the parties and we seek approval of the agreements in terms of the documents that have been filed. If it please the Commission.

PN27

JUSTICE MUNRO: Yes, thank you, Mr Davies. Mr Giddons?

PN28

MR GIDDONS: May it please the bench, the MUA and the AMOU adopt and embrace the submissions of Mr Davies on behalf of the Dredging Industry Industrial Secretariat. You would be aware that from Mr Davies' submissions that this is an industry that is governed by peaks and troughs in respect of availability of both work and availability of employees.

PN29

The two unions believe that there is substantial utility in being able to create an environment and circumstances which allows freely the movement between employers where they are joint venture employers and to have agreements which might provide substantially different terms if the alternative view was taken by this bench might very well lead to greater difficulties in securing the employees given the circumstances.

PN30

As Mr Davies referred, the Full Bench of this Commission, April bench of this Commission last in 1997 certified an agreement with respect to the Maritime Union and the AMOU in relation to the type of work envisaged by the current application before you and but for some adjustment to salaries and wages, we say that the agreement is in substantially the same terms.

PN31

We submit that the Commission should be careful not in the circumstances to be prepared to move away from the decision of the previous Full Bench where the circumstances in relation to the work and the circumstances in relation to application and the grounds supporting the application are basically, if not similar, very close to being identical. Unless there is some distinguishing factor in relation to this application, we would submit that you should consider carefully the previous decisions and in any event, based on the submissions and the statutory declarations of Mr Groves for the AMOU and Ms White from the MUA, we submit that you should certify the application in terms of the submissions made thus far.

PN32

JUSTICE MUNRO: Yes, thank you, Mr Giddons. Mr Beard?

PN33

MR BEARD: Thank you, your Honour. Again, I'd endorse and support the submissions made by Mr Davies in regard to the certification of the agreement in AG5018. It is in the public interest that this agreement be certified and we rely on the statutory declaration made by the Assistant National Secretary of the AWU, Mr Roberts, in this regard. We'd seek the operative date coming into force from today's date and remain in force to 1 August 2003. If it please the Commission.

PN34

JUSTICE MUNRO: Yes, thank you. In relation to AG5019, we note the application is made under section 170LC of the act for the certification of a multiple business agreement to be known as the Contract Dredging (Maritime) Enterprise Agreement 2001-2003. The application was heard at the hearing. Mr Davies of the Dredging Industry Industrial Secretariat appeared by leave for Condreco, Dredeco and Westham with Mr Lawson for Westham. Mr Giddons appeared for the MUA and the AMOU and Mr Reid by letter indicated that the AIMPE supported the application.

PN35

The application is brought in effect by three employers, Condreco, Dredeco and Westham. The agreement is made between those three companies and three unions, the AIMPE, the AMOU and the MUA. Section 170LC provides that an agreement may be made between one or more single businesses subject to a Full Bench certifying the agreement under division 4. Clause 4 of the proposed agreement specifies the application of it. I will not repeat the content of that but in the decision which we will issue is set out that application.

PN36

The three employer businesses are the providers of inter alia contract dredging maritime services at various sites around Australia. The application for certification is made by those employers and the respondent unions. Consequently, the agreement proposed is a multiple business agreement within the meaning of subsection (2) of section 170LC. A multiple business agreement may only be certified by a Full Bench. This bench has been constituted for the purpose of considering and determining the questions that arise. The most important of those questions is whether or not the bench is satisfied that it is in the public interest to certify the agreement.

PN37

The grounds upon which it is asserted that it is in the public interest that the Commission should certify the agreement are firstly that on large dredging projects the employer parties may contract to undertake the work as joint venturers. In these circumstances, uniform employment conditions facilitate the efficient utilisation of dredging plant. Lack of uniformity could generate industrial disputation and secondly, there is a high degree of labour mobility and only a relatively small pool of experienced dredging personal in the industry.

PN38

As a result, employees often end up working for a number of employers over a period of time when different employers secure dredging contracts. Uniform employment conditions facilitate a high degree of labour mobility which in turn ensures that employees with the necessary skill and experience are available for each dredging project and that ends the quotation.

PN39

The proposed agreement is to apply to work on dredging projects let by contract or subcontract after it comes into force. It follows that in relation to the employment to be covered by the proposed agreement or much of it, there may not be any employees currently employed. In that respect, there are Greenfields elements to the proposed agreement, although the work is clearly in a well established industry using a relatively well established workforce.

PN40

We note that the unions negotiating on behalf of the employees to be covered by the proposed agreement are organisations of employees competent to be parties to a Greenfields agreement under 170LL of the act. Moreover, it appears from the statutory declarations that the union parties to the agreement consulted with their members who usually work on dredging projects. Such consultation included information about the terms of the agreement and their effect, the procedures for settling disputes and the intention to apply for and the consequences of certification.

PN41

Such consultation took place in ways that are appropriate having regard to the members particular circumstances and needs. We accept the submissions of the parties that go to the public interest requirement for the certification of a multiple agreement. We note that a related agreement, the Contract Dredging (Maritime) Enterprise Agreement 1997 was certified by a Full Bench on 25 September 1997 in print 5456.

PN42

It remains also to consider whether other aspects of the proposed agreement meet the requisite requirement of the act and rules. We've taken into account the content of the statutory declarations lodged with the applications. Those disclose the nature of the business. Based on that evidence and our own knowledge of the circumstances of the case, we are satisfied that the requirement of the act and rules have been met. That satisfaction is in part based upon the examination of the content of the proposed agreement against a check list of requirements. That check list has been completed and signed by Justice Munro following perusal of the agreement and the statutory declarations.

PN43

The check list is retained as part of the file in the matter and constitutes an element of the decision of the Full Bench for the purposes of the statutory criteria specified in section 170LT. In accordance with section 170LT of the act, the Commission certifies the agreement. It shall come into force from 17 December 2002 and shall remain in force until 1 August 2003. That decision is given the number AG820335 pertaining to the agreement. It will appear in print 925800.

PN44

A decision worded to broadly similar effect is made in relation to matter 5018. We certify that agreement for almost identical reasons to come into force from 17 December 2002 on the basis it shall remain in force until 1 August 2003. The decision and effectively the associated certificate is AG820334 and that will appear in print 925794. If the parties wish to wait probably half an hour, they could have a copy of the certificate but otherwise we'll simply forward it to you through the normal process under section 143, I think it is of the act. If you do wish to receive it, then you'd best let my associate know, otherwise we'll defer it until a more convenient time.

PN45

If that is all, I think the Commission will adjourn.

ADJOURNED INDEFINITELY [10.48am]