AG2003/563, Transcript of Proceedings [2003] AIRCTrans 592 (24 February 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

AG2003/563

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by Adsteam Marine Limited and its subsidiaries
and Another for certification of the Adsteam
Marine and AMOU Certified Agreement 2002

SYDNEY

9.32 AM, THURSDAY, 6 FEBRUARY 2003

Adjourned sine die

PN1

THE COMMISSIONER: Could I have the appearances, please.

PN2

MR T. WILKS: If the Commission pleases, I appear for Adsteam Marine Limited and its subsidiaries. With me is MS M. FULHAM.

PN3

MR K. PINCH: If the Commission pleases, I represent the Australian Maritime Officers Union and this matter today, if the Commission pleases.

PN4

THE COMMISSIONER: Yes, Mr Wilks?

PN5

MR WILKS: Thank you, Commissioner. Commissioner, the matter before you this morning is an application for the certification of an agreement between Adsteam Marine Limited and its subsidiary companies and the Australian Maritime Officers Union. It will be my submission, Commissioner, that the agreement meets the requirements of the relevant sections of the act in all respects and I will request that the Commission certify the agreement with effect from today's date noting that the operative date is 1 January this year.

PN6

There are a couple of specific clauses, Commissioner, in relation to which I think some comments would be appropriate. Firstly, in relation to clause 2, you will see, Commissioner, that there is a list of companies bound. Those companies are all wholly owned subsidiaries of Adsteam Marine Limited and on that basis this is not a multi employer agreement as defined by the act and so does not require the attention of a Full Bench. We would submit that under section 170LB(2) and (3), it's open to the Commission to certify this agreement.

PN7

Secondly, in relation to the provisions of section 170LJ(1), the union has at least one member and the union is entitled to represent the interests of those members. The agreement has been approved by a valid majority of employees. The employees were in possession of the agreement at least 14 days prior to voting and this is not a Greenfield site agreement. The agreement satisfies the no disadvantage test, Commissioner, under part VIE, section 170XA(1). It does not result on balance in a reduction in the overall terms and conditions of employment of employees.

PN8

Commissioner, clause 8 of the agreement specifies types of employment. There is one new type of employment includes in that agreement which during the process of explanation to employees, I undertook to place on the record the company's intentions in relation to that type of employment. There was an apprehension, I think, on the part of the employees that the company might use that type of employment to change the practice of full time employment which generally applies and introduce contract type employment for specific terms for everybody. That is not the company's intention.

PN9

It is the company's intention to use that type of employment to replace, for example, long term absences when parental leave is involved so that those people on parental leave can be replaced for a specific term on full time conditions. So for the record, Commissioner, that is the company's intention in relation to that. Commissioner, the agreement contains a disputes procedure at clause 17 as required under section 170LT(8). Finally, in relation to clause 32, the Commission will see there that the certified agreement makes reference and imports the notion of port operations agreements.

PN10

These port operations agreements are separately discussed and agreed at each port. There are some 36 ports around the country and these agreements deal with operational matters such as changing rosters and hours of work and the like and these agreements are basically live documents and can change from time to time in accordance with the changing circumstances in each port. It's open to employees or management in the port to raise issues for discussion under that clause.

PN11

If the Commission pleases, it's been agreed between the parties that to evidence the existence of these port operations agreements the parties would hand up for the Commission's benefit a copy of the port operations agreements and I hand that up now, if the Commission pleases.

PN12

THE COMMISSIONER: These may change from time to time, might not they?

PN13

MR WILKS: Yes, Commissioner.

PN14

THE COMMISSIONER: I'll mark that exhibit Adsteam1.

EXHIBIT #ADSTEAM1 PORT OPERATIONS AGREEMENTS

PN15

THE COMMISSIONER: Yes, thank you.

PN16

MR WILKS: The Commission will note in particular in relation to the ports of Albany and Geraldton that there is no documentation on that folder. The situation in those ports is that there are obviously practices in place but those practices have not been committed to writing. The parties have simply reached agreement on how to go about doing things as the need has arisen. The company has undertaken to facilitate the committal to writing of those conditions as soon as is practicable.

PN17

Commissioner, with those few comments, it's my submission that the agreement in all respects meets the requirements of the relevant sections of the act and the rules and I'd request that the Commission certify the agreement with effect from today's date noting that the operational date is 1 January. If the Commission pleases.

PN18

THE COMMISSIONER: Yes, Mr Pinch?

PN19

MR PINCH: Thank you, Commissioner. Sir, there's not a great deal to say only that I support the submissions made by Mr Wilks in relation to this matter. Sir, we believe we have complied with the act. There was extensive negotiation probably over a 10 month period to reach today's certification of the enterprise agreement. Sir, we have put in a statutory declaration and it's done by the National Secretary and Director of Port Services, Mr Fleming. The members had a vote on it, sir, and an overwhelming majority of members supported this document being certified in the Commission.

PN20

The members were made aware, sir, that it was going to be certified in the Commission. We actually went around Australia and spoke to nearly every port around Australia talking about the enterprise agreement prior to signing off on it. There's been a lot of hard work and that's why we're here today. Sir, as I say, we believe we have complied with the act and we also ask the Commission to certify the document as from today's date.

PN21

Just bearing in mind Mr Wilks' comment on Albany and Geraldton, there are no documents there. What we have said to the company is that the current practices that exist in the port will continue to apply and yes we will seek to have a look at those practices. Most of the port practices that were handed up, sir, are live documents and they will change from time to time and they will change by agreement between the employees, the unions and the company during the life of the agreement. That's about all I wish to say, sir. All we say is if you could certify it from today's date. If the Commission pleases.

PN22

THE COMMISSIONER: Yes, thank you. Mr Wilks, you mentioned 1 January whereas the agreement says the date of certification and three years from that date. Now, whatever private arrangements you might have, you're not opposed to it being certified from today and expiring 5 February 2006?

PN23

MR WILKS: Commissioner, the point I'm referring to in relation to 1 January is in relation to the operation of the rates of pay clause. The rates of pay clause specify that the rates will increase from 1 January this year. If the Commission pleases.

PN24

THE COMMISSIONER: I see, thank you. This is an application to have certified an agreement that is to be known as the Adsteam Marine and AMOU Certified Agreement 2002. The parties to the agreement are Adsteam Marine and the AMOU for short. On the basis of the submissions and documentations, the Commission is satisfied the relevant requirements of the act and that the rules of the Commission have been complied with. Consequently, the agreement will be certified. It will come into force from 6 January 2003 and will remain in force until 5 February 2006. On that basis, these proceedings are now adjourned.

ADJOURNED INDEFINITELY [9.42am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ADSTEAM1 PORT OPERATIONS AGREEMENTS PN15