AG2004/5504, Transcript of Proceedings [2004] AIRCTrans 3344 (26 August 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 3, 105 St George's Tce, PERTH WA 6000
Tel:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 817

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT BLAIN

AG2004/5504

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LJ of the Act
by The Australian Workers' Union - West
Australia Branch and Another for
certification of the Total Marine Services
Pty Ltd Ocean Legend Certified Agreement 2004

PERTH

4.07 PM, MONDAY, 16 AUGUST 2004

PN1

MR M. LLEWELLYN: I appear on behalf of the Australian Workers Union.

PN2

MR S. McLEAN: I appear on behalf of the respondent, Total Marine.

PN3

THE DEPUTY PRESIDENT: Mr Llewellyn?

PN4

MR LLEWELLYN: Thank you, sir. The agreement we are seeking to have registered covers the employees in essentially the services sections, being the deck and the catering crews on the Ocean Legend facility which is a jack up drilling rig currently being used in a production sense in the North West Shelf. We filed the relevant statutory declarations in accordance with the Act, so I don't intend to go through those in any great detail, other than to answer the questions raised by yourself in your directions you sent out on 5 August of this year. I have sent an e-mail through to the Commission addressing all those issues and I trust the Commission has received that e-mail.

PN5

THE DEPUTY PRESIDENT: Indeed. Thank you, Mr Llewellyn.

PN6

MR LLEWELLYN: Perhaps if I can go into some of the detail in relation to that. Obviously, the answer to 6.2, I would understand would address the concerns raised by the Commission, in that the employees had the agreement well and truly 14 days prior to the vote. In relation to clauses 6 and 21, thanks to the Commission raising that issue with us, what we discovered was that in the copy of the agreement we had filed with the Commission, we had wrongly named, albeit the wrong award code, but wrongly named the Long Service Leave (Oil Drilling Rig Workers and Offshore Catering Workers) Award 1999, in that in relation to clause 6, we had left the word "long service leave" out of the clause.

PN7

As such, what I have done is handed to your Associate an amended copy of the agreement that has picked up that amendment and named the award correctly for the award code that is contained at the end of the sentence, being AW787031. That then makes it consistent with both clauses 6 and 21 as being consistent with the relevant award. The other issue you raised in relation to that question was the issue of the no disadvantage test which I have also addressed in part in relation to the answer I sent you. And that is that Total Marine Services is respondent to the AWU Drilling Rig Workers (Offshore Mobile Drilling Rigs) Award 2001 which is the main award that would normally cover employees employed on these drilling rigs. Total Marine is not, however, a respondent to the Long Service Leave Award we have quoted in clause 6.

PN8

The ODRW Award, as it is referred to, being the AWU Drilling Rig Workers Award does not contain provisions for long service leave but it is an award that normally covers the terms and conditions of employment for the employees in this industry. So, that is the award we have measured the no disadvantage test to. The Long Service Leave Award, of course, only contains long service leave provisions and we have simply replicated those into the agreement which, of course, means there can be no disadvantage in any event, even if the award did apply to the respondent. So, hopefully, that addresses the question you raised in relation to that issue.

PN9

In relation to the issue of the policies and procedures, as we have outlined, the employees were previously employed on State workplace agreements and since that time on statutory contracts or common law contracts where they have had access to the policies and procedures. And the policies and procedures were known by the employees in any event. Now, in terms of the other question you raised with me in terms of my statutory declaration, I apparently left off Total Marine's address. And I have confirmed that in the e-mail that I have sent you, that Total Marine's address is 4 Rousehead Road, North Fremantle. And that is the address of the employer.

PN10

Now, unless the Commission has any other questions of me of the agreement - sorry, the other thing I have addressed in relation to the copy that I have handed up, is the Commission raised with us the name of the union, being the original agreement was signed by Mr Daly who was the Branch Secretary of the Australian Workers Union, Western Australian Branch. We have altered that signatory page just to simply reflect that it is the Australian Workers Union, albeit that it is still signed by Mr Daly on behalf of the Australian Workers Union. And I think that answers all the question the Commission has raised. Unless you have any further issues you would like me to address, we would seek the agreement be ratified to and from today's date.

PN11

THE DEPUTY PRESIDENT: Thank you, Mr Llewellyn. Are you able to confirm that the agreement passes the no disadvantage test as of today's date?

PN12

MR LLEWELLYN: Quite easily.

PN13

THE DEPUTY PRESIDENT: Thank you.

PN14

MR LLEWELLYN: I am proud to say. I am not sure Mr McLean necessarily shares those views.

PN15

MR McLEAN: I concur with your sentiments.

PN16

THE DEPUTY PRESIDENT: Thank you. I wonder if you could clarify for me a little further the reference to the awards. Now, I understand from what you have just put that clause 6 of the agreement now refers to one award?

PN17

MR LLEWELLYN: Which is the Long Service Leave (Oil Drilling Rig Workers and Offshore Catering Workers) Award 1999.

PN18

THE DEPUTY PRESIDENT: Yes.

PN19

MR LLEWELLYN: That is correct.

PN20

THE DEPUTY PRESIDENT: And I wonder if you can clarify for me the reference to the award in the statutory declaration. I understand, under 7.1, there is reference to an award there.

PN21

MR LLEWELLYN: That is correct. Yes, I can, sir. The award we referred to in 7.1 is the AWU Oil Drilling Rig Workers (Offshore Mobile Drilling Rigs) Award 2001. Now, that award contains all of the terms and conditions of employment normally for these employees. It is also the award to which Total Marine Services is a respondent employer. That award, however, doesn't contain any provisions in relation to long service leave. It is simply silent. There has been an agreement that runs in the industry in terms of the long service leave that is applied and the terms of the Long Service Leave Award that we have referred to in clauses 6 and 21 is essentially the agreement that is applied in the industry for longer than my years, if I can put it in those terms.

PN22

So, when looking at measuring a no disadvantage test, we have actually measured it against the AWU Oil Drilling Rig Workers Award because to measure it against the Long Service Leave Award, there is nothing in there bar long service leave. And also, Total Marine aren't respondent to the award. So, the Long Service Leave Award doesn't cover or doesn't cover the terms and conditions or all of the terms and conditions of employees employed in this industry, where as the - sorry, I shouldn't keep referring to acronyms. The Australian Workers Union Oil Drilling Rig Workers (Offshore Mobile Drilling Rigs) Award 2001 does refer to all of the terms and conditions bar long service leave.

PN23

Now, as a result of replicating the long service leave provisions into the agreement in any event, we didn't measure it against that award because Total Marine aren't respondent to the award. Had they been a respondent to that award, then we would have named two awards as the award to measure the no disadvantage test. Because under the terms of the Act, the award to be measured is an award that the employer is a respondent to and covers the terms and conditions of work in the industry which, in terms of the award we have quoted at 7.1(b) in the ODRW Award, that meets that criteria. And there are no other awards I can think of that would cover Total Marine in this situation.

PN24

It is also the award that has been used on other projects to cover work of the same nature. For example, and I have think I have put this into the e-mail I sent through to you, it covered the Hakura 7 when the Hakura 7 which was a rig operated by Japan Drilling Company which is another jack up rig of the same class as the Ocean Legend was being used as a production facility for Apache. And it also covered the Vicksburg rig which was another rig operated by Aqua Oceanics which was previously contracted to Esso which is now replaced by the Wandoo B Platform. So, the award has been used in terms of the Vicksburg for about 7 and a half years to cover the work on that rig.

PN25

And it was also used from 1993 through to about 1995 on the Hakura 7 to cover the same work. And it is on that basis we have stuck with that award and I can't remember exactly when we ropped Total Marine in, but I think it was '95 or '96 that we roped them in as a respondent to the award. So, that is why there is a difference in the two awards.

PN26

THE DEPUTY PRESIDENT: Thank you. I understand that. Would it be your view that 7.1 of the statutory declaration should be as it were amended in this hearing to make reference to the Long Service Leave Award specified in clause 6?

PN27

MR McLEAN: Sir, if I could perhaps interject - - -

PN28

THE DEPUTY PRESIDENT: Yes, Mr McLean?

PN29

MR McLEAN: - - - to add a bit of clarity to this matter. It is my understanding, having read the ODRW Award, that in respect to the question of long service, it does in fact refer in that award to the other award to which we mentioned in the agreement, the Long Service Leave Oil Drilling Rig Workers And Offshore Catering Workers) Award. So, the parent award, if you like, does make mention in the clause with respect to the question of long service leave, it does refer to the other award. So, I guess my view would be that with respect to this 7.1, the question that you pose, it is probably already covered under the award because the award itself makes reference to the Long Service Leave Award which was the catering part of the Offshore Workers Award. If that serves to clarify.

PN30

THE DEPUTY PRESIDENT: Thank you, yes. No, I wasn't trying to raise any complication, but seeking to understand what the position is with the awards. And I think Mr Llewellyn and yourself, Mr McLean, have clarified that. So, I think probably the best thing is just to proceed. I have no further questions.

PN31

MR McLEAN: Right.

PN32

THE DEPUTY PRESIDENT: And to hear your views in relation to the matter.

PN33

MR McLEAN: Thank you, sir. With respect to some of the questions that you posed in the communication by e-mail to Mr Llewellyn and myself, and if I can deal with 6.2 in terms of ensuring that employees had this agreement for a full 14 days, I can attest to that fact. I do have receipt dates that they were sent and also the dates that the vote was taken and returned to us. So, as a matter of record, we do have that and we are satisfied that all employees were allowed 14 days or greater. In some cases it was greater. That was to take account of the fact that some people were on board the facility at the time of the vote. And equally there is a corresponding on-shore leave for another crew.

PN34

So, in total I was satisfied that most people had 14 days or greater before being asked to communicate their acceptance or otherwise. With respect to that, as stated by Mr Llewellyn, all employees have voted in favour and we now concur that this document should be forwarded to you for the purposes of registration today.

PN35

THE DEPUTY PRESIDENT: Thank you for that. I have no further questions. I turn to the application which is Part VIB, Division 2, section 170LJ of the Act to certify an agreement to be known as the Total Marine Services Pty Ltd Ocean Legend Certified Agreement 2004. Having heard Mr M. Llewellyn on behalf of the Australian Workers Union, the AWU, and Mr S. McLean on behalf of Total Marine Services Pty Ltd, Total Marine, and having read the statutory declarations filed by Mr M. Llewellyn on behalf of the AWU and Mr S. McLean on behalf of Total Marine, I am satisfied that the agreement filed relates to a constitutional corporation, namely, Total Marine Services Pty Ltd, ACN 009231476.

PN36

The AWU has at least one member employed in the part of the single business to which the agreement relates and is entitled to represent the industrial interests of the member. The agreement passes the no disadvantage test. Was made in accordance with section 170LJ. A valid majority of persons employed at the time whose employment would be subject to the agreement genuinely approved it. The explanation of the terms of the agreement was appropriate. It includes procedures for preventing and settling disputes between the employer and employees whose employment would be subject to the agreement. And it specifies a nominal expiry date of not more than 3 years after the date on which the agreement would come into operation.

PN37

Additionally, there are no reasons set out in section 170LU of the Act why I should refuse to certify the agreement. Accordingly, it will be certified with effect from 16 August 2004, to operate in accordance with its terms from that date. The formal certificate will issue in due course. I adjourn this hearing.

ADJOURNED INDEFINITELY [4.22pm]