C2004/25, Transcript of Proceedings [2004] AIRCTrans 1531 (21 April 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 10584
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2004/25

THE AUSTRALIAN INSTITUTE OF MARINE
AND POWER ENGINEERS

and

THE V SHIPS

Notification pursuant to section 99
of the Act of an industrial dispute -
log of claims

SYDNEY

12.05 PM, TUESDAY, 13 APRIL 2004

THIS HEARING WAS CONDUCTED BY WAY OF VIDEO CONFERENCE

PN1

THE COMMISSIONER: Could I have the appearances, please? First of all in Perth.

PN2

MR P. OLSEN: If it please the Commission, I appear for the Australian Institute of Marine and Power Engineers.

PN3

THE COMMISSIONER: And also in Perth?

PN4

MR A.S. CACCAMO: I appear on behalf of Pacific Manning Company Proprietary Limited, Adsteam Off-Shore Proprietary Limited, Mermaid Marine Australia Proprietary Limited, Fastad Shipping, Tidewater Marine, Total Marine Services and the Pirelli Group of Companies and that's it.

PN5

THE COMMISSIONER: And in Melbourne, who do we have?

PN6

MS J. THOMPSON: I appear for the Australian Institute of Marine and Power Engineers.

PN7

MR B. CHARLES: I seek leave to appear on behalf of Bass Link Proprietary Limited and with me today is MS M. O'KEEFE from Bass Link Proprietary Limited.

PN8

MR B.J. NEILL: I'm from the Australian Industry Group and I am appearing on behalf of Siemens Limited. If the Commission pleases.

PN9

THE COMMISSIONER: Are there any employers, and I might have missed it, that are representing - who is representing V Ships? Nobody.

PN10

MR CHARLES: If I can help the Commission, I might be able to provide the Commission with some information about them later but I am not representing them.

PN11

THE COMMISSIONER: So no one is representing V Ships. Is anyone representing the Pirelli Group?

PN12

MR CACCAMO: Yes, I'm representing the Pirelli Group.

PN13

THE COMMISSIONER: Who is I?

PN14

MR CACCAMO: Caccamo.

PN15

THE COMMISSIONER: You're representing the Pirelli Group, right. This might be you again Mr Caccamo, but maybe not, is anyone representing North Western Shipping and Towage?

PN16

MR CACCAMO: No.

PN17

MR OLSEN: There is one other not represented Commissioner I believe and that's Adsteam Marine.

PN18

THE COMMISSIONER: Mr Caccamo, you've got Adsteam Off-Shore but not Adsteam Marine, right.

PN19

I think it is your notification, at least, I think so, Mr Olsen, what do you want to do and what do you say has happened?

PN20

MR OLSEN: Thank you, Commissioner. Firstly I'd just like to explain why we are not in the Commission in Sydney even though we notified and asked that the hearing to be heard in Sydney. We are conscious that foreign companies and foreign vessels involved might develop an argument about that and we contemplated in engaging counsel but had we done so would have been W.G. McNally and Co which I am sure the Commission is familiar with and we did anticipate our federal industrial officer, Mr Andrew Willamson attending. He is also experienced in related matters.

PN21

As I said earlier we chose at this point in time not to engage counsel and up until last Thursday we did anticipate Mr Williamson would be there in Sydney but unfortunately he is not available so I apologise for that but that's the reason why over the weekend I forwarded to the Commission and to the parties a written submission which goes some way to explain the position that we have in respect of this matter and foreign vessels and foreign seafarers.

PN22

Just moving on, Commissioner. What we expect here today is that the Commission make a finding that a dispute exists between AIMPE and those parties named in the list of recipients served with the log of claims, starting off with V Ships and going through Pirelli list of companies, Siemens, Bass Link, Pacific Manning, Adsteam Off-Shore, Mermaid Marine, Adsteam Marine, Fastad Shipping North West Shipping and Towage, Tidewater Marine and Total Marine.

PN23

On 12 January 2004 the union sent by registered mail to those ships and those other companies I've just named, a log of claims and a letter of demand. After the expiration of 14 days from the date of mailing we confirmed that none of the companies sent the log of claims responded and none has responded affirmatively so far. Accordingly on Monday, 23 November 2004 we submitted to the Australian Industrial Registry via electronic filing the following. Form R4 notification of alleged industrial dispute, copy of the letter of demand, copy of the log of claims, a list of persons served, a statement as to service by a person with knowledge of the facts, a statement of authorisation to serve the log of claims and copies of the Australia Post registered mail receipts.

PN24

On 16 March we received from the Commission a notice of listing, a copy of the form R4 and a notice fixing the time and place of hearing for this matter. On the same day, ie 16 March, we forwarded on those documents to all those companies named in the list of recipients. Yesterday I e-mailed to the Commission, and I've confirmed this morning, that it was received by your associate, a copy of the fax print-out confirming that the transmission was successfully sent and received. I also advised the Marine Union of Australia and the Australian Maritime Officers Union of these proceedings.

PN25

Furthermore as I've indicated earlier because of two of the companies served we have made a written submission in respect of those foreign companies. It is on that basis that we submit that we followed all due process in accordance with the Workplace Relations Act, in accordance with the rules and regulations, we submit that the material before the Commission is sufficient for it to find that an industrial dispute exists between the parties. If the Commission pleases.

PN26

THE COMMISSIONER: I should have asked you this, Mr Olsen, before. Do you have any objection to Mr Charles being granted leave to appear?

PN27

MR OLSEN: No, not at all.

PN28

THE COMMISSIONER: Leave is granted in that regard. If I can hear from you, Mr Caccamo?

PN29

MR CACCAMO: Mr Commissioner, firstly I say in respect of the number of companies listed, and I will go through them, we will be consenting to a dispute finding. Those companies are Adsteam Off-Shore, Pacific Manning, Mermaid Marine, Fastad Shipping, Tidewater Marine, Carter Marine Services. They are companies that I am able to represent that I've got instructions from.

PN30

In respect of the Pirelli Group of companies, Pirelli Power Cables and Systems does not employ seafarers, will not employ seafarers, is a land-based company and we would oppose - and their operations are land-based - a dispute finding in respect of it.

PN31

In respect of the other two Italian Pirelli companies listed, they are in fact the one company and we oppose a dispute finding in respect of it. You did ask about V Ships. Now, V Ships had a - - -

PN32

THE COMMISSIONER: Sorry, one Italian company is opposed to the dispute finding for more or less the same reason as Pirelli Power Cables?

PN33

MR CACCAMO: No, sorry, Mr Commissioner, I was going to come back to that.

PN34

THE COMMISSIONER: Sorry.

PN35

MR CACCAMO: I will deal with that now. Pirelli Group of companies do not intend employing Australian seafarers on the Australian coast and for that reason believe a dispute finding against it should not be found. We are aware of the CSL Yarra decision, we say the circumstances of this case can be distinguished somewhat from that case and we would be requesting that this matter be programmed, or if the parties can't reach agreement, that this matter be programmed for hearing and exchange of evidence and submissions to determine that issue.

PN36

In respect of these ships I don't represent them but I've been asked to inform the Commission and do with it what we will, that these ships did have a commercial arrangement with the Pirelli Group for supplying crews to the Pirelli Group of companies or vessels, sorry, but that is no longer in place and so the V Ships will not be supplying seafarers to the Pirelli Group of companies and that's all I've been asked to inform you.

PN37

THE COMMISSIONER: Can I just ask you for my information. In relation to what you've said about the two Italian Pirelli companies, or sorry, the one Italian Pirelli company but to keep it easy the address in St Kilda Road. You say they will not - they do not and they do not intend employ Australian seafarers on the Australian coast, do I take it that those words are well specifically chosen? They might in fact employ non-Australians seafarers in some of the operations?

PN38

MR CACCAMO: That's correct, Commissioner.

PN39

THE COMMISSIONER: I get the picture, Mr Caccamo. Thank you. Ms Thompson, you're with Mr Olsen, are you?

PN40

MS THOMPSON: Yes, I think Mr Olsen has covered everything from our perspective.

PN41

THE COMMISSIONER: Perhaps to make it a bit easier, I get to you, Mr Neill, and I've had communication from you this morning but what do you wish to say?

PN42

MR NEILL: Thank you, Commissioner. If the Commission pleases I just wish to reaffirm the fax I sent to the Commission this morning. Siemen does not engage any employees in the classifications or callings set out in the log of claims and does not intend to employ any person in such classifications. The Institute of Marine and Power Engineers was informed of the company's response to the log in its fax to the institute on 29 January 2004 and as I've indicated to the Commission a copy of those documents was provided to the Commission this morning which I understand have been received.

PN43

THE COMMISSIONER: Yes, thank you.

PN44

MR NEILL: On this basis, Commissioner, we would oppose a dispute finding in respect of Siemens and we should be deleted from the log of claims.

PN45

THE COMMISSIONER: Thank you. Now, Mr Charles?

PN46

MR CHARLES: If the Commission pleases. There are two matters that I might briefly take the Commission to in support of Bass Link's opposition to a finding of a dispute against it. The first relates to the ability of the institute to cover the persons employed by Bass Link who may be on the cable laying vessel. Having a look at its eligibility rules I certainly can't see, without trying to trite about it, how the - I think it is rule 4, Commissioner, which governs eligibility, how it could be seen that the persons that will be employed on the cable laying vessel - - -

PN47

THE COMMISSIONER: Bass Link, they're the employer of persons on a cable laying vessel, are they?

PN48

MR CHARLES: Yes, but if I can explain that further.

PN49

THE COMMISSIONER: Sorry.

PN50

MR CHARLES: There will be two persons that Bass Link intend to employ who will be on their cable laying vessel. As I understand arrangements, and there might be others here who can give more authority for comments on this point, but as I understand arrangements there will be a number of vessels involved in the cable laying project and there will be one of those vessels that will actually physically be laying the cable.

PN51

The two persons employed by Bass Link will work on a shift basis so there will only be one vessel in Bass Link at any one time. There the task will essentially be the eyes and ears of Bass Link on the cable laying vessel. Their role will be purely administrative and not operational and they will play no actual role in the cable installation process. Essentially their main task is to ensure that Pirelli fulfil its contractual obligations to Bass Link in relation to the installation of the cable. So in forming that overseeing role or eyes and ears role if I can call it that, they don't actually have the ability whilst on the cable laying vessel to tell Pirelli what to do or to rectify any matters or anything of that nature. They essentially will be reporting back to head office, if I can put it that way.

PN52

In light of that brief overview, Commissioner, Bass Link's submission is that it doesn't believe that those two employees can be covered by the eligibility rules and cannot see how they fit in either marine engineers or power engineers, which are two of the categories in the eligibility rules but having said that submit that it is a matter for the institute to satisfy the Commission that it does have the power or the ability to so cover and if the Commission is so minded to - if there is going to be some programming about submissions, etcetera, that there be appropriate directions or orders made to program the necessary information that it will need in relation to that particular issue.

PN53

Not unrelated I would say to that first point, Commissioner, is that in light of the job that the Bass Link employees will be doing, as I've briefly outlined, we find it difficult to see how they could be covered by the log or whether in light of what I've just outlined whether it is actually intended that the role that those persons will be performing would be covered. The log itself in relation to the self-propelled cable laying vessels at schedule 1 talks about chief engineer, first, second, third engineer and marine electrician and we don't think that those categories broad though they might be, would cover the work that Bass Link's employees on the vessel to perform. Also the letter of demand that came with the log of claims specifically refers to covering those persons who are members and are eligibly members of the institute - and I'm reading from the end of the first paragraph of the letter of demand:

PN54

- who are employed now or likely to be employed in the future in the classifications set out in the log of claims.

PN55

And it names one of the Pirelli companies. For those matters, Commissioner, Bass Link opposes the finding of a dispute against it and Siemens seeks to be removed from the log.

PN56

THE COMMISSIONER: Yes, thank you. Yes, Mr Olsen?

PN57

MR OLSEN: First of all to Siemens and having heard what Mr Neill has placed on the record in respect of that company not employing any seafarers we accept that situation and we are happy to have Siemens removed from the list. Having heard what Mr Charles has had to say, I've had a couple of discussions with him last week about this matter, and having heard him place on the record the employees of Bass Link would not fit the classifications to become eligible to membership of the AIMPE then we are likewise happy to have Bass Link removed from the dispute finding.

PN58

We do have a different view, of course, about Pirelli and I can talk to that now, Commissioner, or hear what you'd like to say about Siemens and Bass Link?

PN59

THE COMMISSIONER: What do you say about V Ships because they're not really here to say one way or another but some comment has been made about them?

PN60

MR OLSEN: We are aware that - initially we've had some discussions with the Pirelli people but when we started those discussions last year they did indicate to us that V Ships had an involvement with the company and with the vessel. Our information is that there a connection with V Ships. It may not go to V Ships actually manning the vessel but we understand V Ships have a hand in the management of the vessel and as such we seek to retain V Ships as a party to the dispute.

PN61

THE COMMISSIONER: Well, they have to be employers but anyway I guess we won't do anything now because we haven't heard from them as yet in a formal sense. Which brings us back to the Pirelli company that has that address in St Kilda Road in Melbourne and then what Mr Caccamo said about them. What do you say again?

PN62

MR OLSEN: First of all there ought to be no doubt that Pirelli V.Sistemi is a ship owner. They've confirmed to us that they are in fact the beneficial owner of the vessel Giulio Verne so there is no doubt that they fit the description of a ship owner. Equally there's no doubt because they've told us that the seafarers employed on the Giulio Verne are employed by Pirelli so there's no argument they are employers of seafarers.

PN63

Members of the work force on board the vessel who are certificated engineers would be eligible to become members of the institute although none of them are at the moment and of course the potential to employ existing institute members we say exists. So Pirelli do have some strikes against them which we say allows them and will allow them to be employers of Australian marine but notwithstanding that what we say is that it matters not whether or not they employ Australian the fact is the vessel Giulio Verne will be operating both in Victorian waters, Tasmanian waters and Commonwealth waters in Bass Strait. It is a substantial project which from go to whoa runs about 18 months and that the vessel is engaged in commerce and trade between those states and in Commonwealth waters.

PN64

I must admit to the Commission I am not as familiar with the CSL High Court matter as my colleague Mr Williamson is and that's the reason why we've prepared that written submission. Having said all that about the Giulio Verne about Pirelli then I would refer the parties to written submission and suggest that having regard to what the High Court said and what's happened in the CSL and the ISM cases in the Commission that Pirelli ought not to be struck off the list and ought to be a party to this dispute.

PN65

THE COMMISSIONER: Has the work commenced?

PN66

MR OLSEN: No. My understanding is that there has been some sub-sea surveying but the vessel Giulio Verne I believe will arrive in Melbourne

PN67

early in May and the project will get underway around 15 May.

PN68

What I would be suggesting, so you know where we are coming from, that first of all as I've said we would ask a dispute finding and then we would be suggesting that the parties go away and continue the negotiations and hopefully come back to the Commission in a very short while with a resolution to the dispute which would properly take the form of an off-shore sub-sea cable laying award.

PN69

THE COMMISSIONER: What do you say about that, Mr Caccamo? I'm talking about in respect of the Pirelli Company?

PN70

MR CACCAMO: Mr Olsen has pointed out that negotiations have occurred and are continuing and will continue regardless of the outcome of these proceedings. The only disagreement we have with what Mr Olsen has said is that my instructions are that Pirelli will not engage Australian seafarers if Australian seafarers are to be engaged they will enter into a commercial arrangement with one of the other companies listed that I indicated would consent to, i.e any one of the six vessel operators who will supply Australian labour to Pirelli.

PN71

In respect, it is questionable and it is arguable as to whether on this project and in the manner in which this project will be run, Pirelli will be engaged or the vessel will be engaged in commerce or trade, within Australia or between Australian ports, and we say that that is an arguable point and on that basis we say it is distinguishable from SES Yarra and on that basis we do not consent to a dispute finding.

PN72

THE COMMISSIONER: When you say you're not consenting to the dispute finding, you initially said something about you sought a program of hearing.

PN73

MR CACCAMO: Yes, that's still our position, yes. We would say that out of this morning's proceedings in respect of Pirelli and possibly V Ships, although they're not here, that a program of hearings or exchange of information and evidence between the parties occur. That would occur at the same time as negotiations between AIMPE, Pirelli and any of the other companies involved in this project would continue. It may be through that exchange of information that the matter is resolved. If it's not then we would come back to hearing whether Pirelli should be bound in respect of these applications or in this dispute finding.

PN74

THE COMMISSIONER: Well, what I propose to do. I've noted that a demand log of claims has been served on a range of entities. I am aware of the perhaps special situations that apply as far as the marine industry goes and the reliance on section 5 rather than section 4 of the Act and I am satisfied that the demand was served under authorisation and it was not accepted and in due course in normal circumstances that would be sufficient to have a dispute found.

PN75

In respect of the specifics of this matter a dispute will be found between AIMPE and I won't - hopefully it will not prove fatal that I miss-state these companies but for short the dispute will be found between Adsteam Off-Shore, Pacific Manning, Mermaid Marine, Fastad Shipping, Tidewater Marine, Total Marine and given their lack of appearance I take that as being not opposition, I would include also North West and Shipping and Towage of Glenorchy and also Adsteam Marine of Bondi Junction in New South Wales. I specifically exclude, as is sought by the respondents and by the applicant, the company known as Bass Link and also the company served and known as Siemens Limited. I assume, and can be corrected on this, but I also assume that no dispute will be found in respect of Pirelli Power Cables and Systems Australia because of what's been said but if I am wrong about that Mr Olsen will correct me.

PN76

I will not find the dispute in respect of V Ships and the two Pirelli companies, one in Italy and one in St Kilda Road, Melbourne, which I understand - am told is one company - or V Ships, I think I've said that, at this stage because they have a point to litigate and they should be heard fully but in respect of that I am conscious of the urgency of the matter.

PN77

I note that there are submissions that have been filed, or brief submissions that have been forwarded by the institute and which I will mark now - and that is your material Mr Olsen - AIMPE1 and as I said in normal circumstances what's before the Commission would be sufficient to have a dispute found and the Commission would normally be satisfied with the submission. However, as I said the Pirelli company and perhaps the V Ships company do not subscribe to that prima facie view and consequently I direct that by close of business on Friday, 30 April, Pirelli file any witness statements and/or submissions as to why a dispute shouldn't be found by any of those companies and then by Friday, 14 May that the institute file any material in response.

MFI #AIMPE1

PN78

I don't have my diary in front of me but some time in late May the matter will be listed for hearing and determination and you will be advised about that shortly. What is the best venue as far as those hearings are concerned, Melbourne or Perth, Mr Olsen? Well, it would be Perth, wouldn't it. Sorry?

PN79

MR OLSEN: First of all, I can confirm that we have no objection to Pirelli Power Cables and Systems being struck off the list so that just leaves the two, or the two Pirelli companies will we are told is one anyway. Probably we'd stay with Sydney because if there is to be argument about the CSL implications of this we may well still engage counsel and that would be W.G.McNally and Co, so it is probably best if we stay with Sydney.

PN80

THE COMMISSIONER: And from your point of view, Mr Caccamo?

PN81

MR CACCAMO: Well, we'd be representing them in Perth so our preference would obviously be Perth but we are in the Commission's hands.

PN82

THE COMMISSIONER: The venue probably is not as - we will play that by ear. On that basis and subject to those directions I will make a formal finding in the terms that I've suggested and on that basis these proceedings are now adjourned. Thank you.

ADJOURNED ACCORDINGLY [12.43pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

MFI #AIMPE1 PN78