C2003/6818, Transcript of Proceedings [2004] AIRCTrans 785 (26 February 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 9393
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH

C2003/6818

APPEAL UNDER SECTION 45 OF THE ACT
BY INTERCONTINENTAL SHIP MANAGEMENT
AGAINST THE DECISION AND ORDER OF
SENIOR DEPUTY PRESIDENT DRAKE
ISSUED ON 19 DECEMBER 2003 IN
U2003/967 RE TERMINATION OF
EMPLOYMENT - APPLICATION TO VARY
STAY ORDER ISSUED BY SENIOR DEPUTY
PRESIDENT MARSH ON 7 JANUARY 2004

SYDNEY

10.00 AM, TUESDAY, 17 FEBRUARY 2004

Continued from 6.1.04

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN193

THE SENIOR DEPUTY PRESIDENT: Are there any changes in appearances, please?

PN194

MR I. TAYLOR: If it please the Commission, I seek leave to appear instructed by Mr Keats on behalf of the respondent.

PN195

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Taylor. Leave is granted. Yes, Ms Zeitz.

PN196

MS ZEITZ: Your Honour will recall that this matter was listed for a stay application on 6 January and you handed down a decision in the matter on the 7th. In the course of the proceedings, before your concession was made on behalf of our client at paragraph number 127 by Mr Manuel on the basis of that representation of financial hardship to Mr Culpeper, the respondent in the appeal, if he was not in receipt of some funds while the appeal was outstanding to be heard. In fact, your Honour took that into account at paragraph 8 of your decision when you referred to the personal economic hardship claims that had been made on his behalf.

PN197

Subsequent to your handing down a decision, two issues arose. The first was that, as my client had been ordered and in compliance with that order was to commence making payments to Mr Culpeper as a result of the concession that had been made, it ascertained that it may be of benefit to both Mr Culpeper in terms of the risk of repayment and indeed to itself if efforts were made to second him to other employers while the appeal was outstanding.

PN198

On that basis, I am instructed that Mr Ives approached a number of other shipping lines with a view to placing Mr Culpeper on a secondment basis with those organisations and in the course of those inquiries contacted Stolt Shipping, at which point it was advised that he had been employed as a relief second engineer by Stolt and had in fact been so employed on the day when the stay application was listed before you and that Mr Culpeper had signed off from that employment on 7 January 2004, which was the date of your decision.

PN199

Our understanding was that at the time that the submission was made by Mr Reitano on behalf of Mr Culpeper, he was not engaged in employment and that was the basis upon which the concession was made. It's on that basis that a subpoena was requested from the Commission and issued and the material that has been provided to the Commission and to my friend, certainly to Mr Keats, on behalf of Mr Culpeper was provided.

PN200

I can indicate to the Commission that two things have occurred. Firstly, that in compliance with the order of the Commission a sum of $3,883.92, which is apparently the net shortfall to Mr Culpeper for the 12 month period, is now held in a trust account pending the outcome of the matter and I note that's a significant difference from what was stated to be the issue when the matter was before you, that's at paragraph number paragraph number 175. The moneys that are to be paid by way of ongoing salary have currently been paid into our trust account pending the outcome of this morning's proceedings so in the event that the Commission were to determine what was to occur with those moneys, that issue can be quickly resolved.

PN201

In effect, what my client seeks is relief from the obligation to make ongoing payments to Mr Culpeper on the basis that the concession made to the Commission was made on a misapprehension of facts as reported to the Commission on the day and that indeed at the time the matter was before the Commission he was in fact engaged in employment and that the signing off occurred at his instigation on 7 January.

PN202

THE SENIOR DEPUTY PRESIDENT: Yes, was that employment ongoing which some of the documents seem to say or was it in fact for a fixed period. Are you in a position to assist me there?

PN203

MS ZEITZ: He was a relief engineer, second engineer and as I understand it, Mr Ives is available to give evidence although it wouldn't be entirely satisfactory in terms of the way this is occurring this morning. He is able to report to the Commission what actually occurred and, on my instructions, when he contacted Stolt to raise the issue of possible employment with them they advised him that Mr Culpeper had advised them that he wished to sign off on the 7th because he had been reinstated and was now in receipt of income.

PN204

We haven't inquired of Stolt about the ongoing nature of the employment but certainly our instructions were and understanding was that as of 6 January he was engaged in an ongoing basis of performing as a relief second engineer and that in fact is borne out by the fact that the shortfall in earnings for him for the period of 12 months is barely $4,000. We don't seek any variation on the placement of that sum in the trust account, we simply seek relief from the obligation to make ongoing payments, if the Commission pleases.

PN205

THE SENIOR DEPUTY PRESIDENT: Yes, I understand the distinction. Thank you. Yes, Mr Taylor.

PN206

MR TAYLOR: Thank you. Your Honour, this application is quite unnecessary and inappropriate and unwarranted. This application is made, as Ms Zeitz has been good enough to point out, in circumstances where they're effectively seeking to overturn their own concession. It's effectively trying to appeal a consent position and it's attempting to do so without any proper evidence. The only affidavit that has been filed to date contains something that is in the order of third hand hearsay and fundamentally is wrong.

PN207

THE SENIOR DEPUTY PRESIDENT: Well, I will be interested to hear your evidence that substantiates that, that what's before me is wrong, Mr Taylor, but you proceed. If it's wrong, it's wrong and I haven't received any witness statements from you but you feel free to lead evidence this morning.

PN208

MR TAYLOR: As we understood it, it would be firstly a matter for your Honour to decide what evidence your Honour would admit from Ms Zeitz and certainly on our view you wouldn't admit the evidence that they have filed to date.

PN209

THE SENIOR DEPUTY PRESIDENT: All right, well, maybe we will deal with that first.

PN210

MR TAYLOR: That's entirely appropriate, your Honour. I was thinking, unless your Honour has a different view, that I might just outline my instructions in the same way Ms Zeitz has so that your Honour understands what the position of the instructions is and we can then go into evidence but I'm happy to deal with the evidence first if your Honour would prefer that.

PN211

THE SENIOR DEPUTY PRESIDENT: Well, if you're challenging the evidence that's before me, I think it might be appropriate to deal with that first and give Ms Zeitz an opportunity to comment on it.

PN212

MR TAYLOR: Would your Honour like me to identify what it is that we challenge in the evidence?

PN213

THE SENIOR DEPUTY PRESIDENT: Yes, I think that's probably the most efficient way of dealing with the matter.

PN214

MR TAYLOR: Your Honour, the only evidence we have been provided with is an affidavit of Ms Oberdan and in paragraph 19 of that affidavit, she gives some evidence about something which an unknown person at Stolt told Mr Ives, who told someone who told Ms Oberdan and, in particular, that the whole paragraph is something in the order of second or third hand hearsay and wouldn't be admitted.

PN215

THE SENIOR DEPUTY PRESIDENT: Yes, I think Ms Zeitz has indicated that Mr Ives is here to give evidence if that's required, so you can take advantage of that opportunity if you wish to cross examine him.

PN216

MR TAYLOR: Well, that would still be something in the order of second hand hearsay, depending on who Mr Ives spoke to and we would object to the evidence in any event being given by Mr Ives but in particular, the suggestion in 19(c) that Mr Culpeper was engaged in regular work and that work was ongoing is just wrong.

PN217

THE SENIOR DEPUTY PRESIDENT: I think I'm interested in what was happening at the time I was hearing the matter, Mr Taylor.

PN218

MR TAYLOR: Yes, I can tell you that, your Honour.

PN219

THE SENIOR DEPUTY PRESIDENT: I'm interested in both, but I'm particularly interested in what was happening at the time of 6 January when I listened to and gave a decision as a matter of discretion in relation to submissions made on that day.

PN220

MR TAYLOR: Yes, your Honour, if I can outline my instructions in that and we can put Mr Culpeper in the box.

PN221

THE SENIOR DEPUTY PRESIDENT: Yes, but maybe you're challenging the evidence, if we go to the subpoenaed evidence and tell me what's wrong in those papers.

PN222

MR TAYLOR: I've had a look at them, there was nothing on the papers, in the subpoenaed papers that seemed wrong.

PN223

THE SENIOR DEPUTY PRESIDENT: I thought you were challenging that being wrong.

PN224

MR TAYLOR: No, nothing in there that we say is wrong.

PN225

THE SENIOR DEPUTY PRESIDENT: If we're limited to sub-paragraph 3 of paragraph 19 that's of assistance, thank you. Well, you outline your - - -

PN226

MR TAYLOR: Yes, indeed. In fact, Mr Culpeper gave evidence before Senior Deputy President Drake in chief that he had been employed by Stolt as a relief engineer and he had had three swings by the time that the proceedings before Deputy President Drake took place and that's in the evidence and Ms Zeitz didn't cross examine him about that.

PN227

Mr Reitano when the matter was before you informed you that he had since been one further relief swing and that's when it did indeed end, on 7 January on my instructions, and that came about this way. The nature of relief swings, as I'm sure Ms Zeitz's client would readily concur, is that they are in the nature of true casual work and the documents that have been subpoenaed include pay records which show a casual loading. This is work where Mr Culpeper got in the order of a few days' notice on each occasion that he would be required and there was absolutely no understanding that he would have any further work at the end of every swing and he had four swings and there was a substantial gap in between each of them and that was evidence, as I said, that was before Senior Deputy President Drake. Nothing new to Ms Zeitz or her client. The only thing that was new is that he had, as Mr Reitano told you your Honour, a further swing since that matter was before Senior Deputy President Drake.

PN228

What occurred was this. The decision of her Honour Senior Deputy President Drake came down on 19 December and required reinstatement from 12 January and Mr Culpeper was at sea at that time. His lawyers contacted the institute, his union, to tell him that he had to be ready to commence work on 12 January and that required him to leave the ship and, of course, that isn't something that can be done at the drop of a hat and what occurred was that prior to the matter coming before your Honour arrangements were put in place for him to depart the boat and that arrangement was - initially there was some talk about him leaving in Brisbane on 31 December but the Stolt ship couldn't find a replacement for him at that time, so instead he disembarked on the next available date when the boat pulled into Melbourne on 7 January.

PN229

I think the one thing that Mr Reitano got wrong when he was before your Honour, and there is nothing deliberate about this and the suggestion that's been put that it was an act of dishonesty, we say, is quite an inappropriate thing to be putting in documents that are involved in the Commission. Mr Reitano told your Honour that that swing - in effect he said that swing had finished. He would have been more accurate to say that that swing was about to finish in any event and it was originally said to take about a month, that he would be on board about a month, and he knew it was going to finish somewhere around that period, in any event.

PN230

The fact is that in order to comply with her Honour's order, steps were taken for him to come off the boat and he, in fact, came off the boat the next day. What's entirely true is what was put, that he had had in the order of 18 weeks work. He, in fact, had had I think, if you add up the amount of days he was on board the Stolt, it was actually something in the order of fifteen and a half weeks in the 11 months, although I think to be fair you must also take into account that every day he is on board he accrues almost a day of leave, but what Mr Reitano put, that he had about 18 weeks work, was probably a little over the top, he actually had about fifteen and a half weeks and what was fundamentally the case is he did not have regular ongoing work. This application comes before you with allegations of active dishonesty with a strong allegation that Mr Culpeper had ongoing regular work and deliberately misled the Commission.

PN231

That's just fundamentally wrong and nothing Mr Reitano put to you on that was wrong when it was before you on a stay, what he put was precisely the position, namely that there was no regular ongoing work, he had had some casual relief work and that work would have ended in any event in the few days after the matter came before your Honour but because of the orders of her Honour Senior Deputy President Drake requiring him to be at work on the 12th or be available for work on the 12th, arrangements were made well before the stay for him to come off.

PN232

It might well be, and I haven't had a chance to speak to Mr Reitano, that the original view that he would come off on 31 December was something that Mr Reitano was aware of. I don't know whether he was aware that in fact that unfortunately that had not been able to be done and he came off on the 7th, but there was no fundamental misleading of your Honour, to the contrary.

PN233

We just simply say that there is no basis for this application. It has been done on second or third hand hearsay and when we are forced to come before you to answer these allegations it is clear that there's just nothing in them, that's our position on my instructions, your Honour. Obviously we can, if necessary, test the evidence of both parties to the extent to which Mr Ives is permitted to give hearsay evidence about something that happened at Stolt, we would object to that but if it goes and we have to answer it there's nothing on the papers that we see from the summons of production which assists my friend at all to suggest regular, ongoing employment. However, if the evidence of Mr Ives goes in to the effect of 19(c) we can ultimately call Mr Culpeper.

PN234

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Zeitz. Perhaps you would like to address firstly the objection to the evidence, particularly 19(c) of the affidavit of Ms Oberdan.

PN235

MS ZEITZ: I can see that it's hearsay, your Honour, but what I submit is that if that is just put to one side for the moment the relevant industrial instruments that govern employment mean that as at 7 January, even if what my friend submits is correct, part of the accrual of leave that attracts in these arrangements on swings is almost a day for day at 0.96 of a day for every day worked, so as of 7 January Mr Culpeper had accrued 26 paid days leave which he was paid, which runs through for a period of 26 days from 8 January, so we say that information was simply not put before the Commission, that at the time submissions were being made he was in receipt of payment that would take him some 26 days past the date of the hearing of the stay application.

PN236

The second thing I would say is that I don't know who gave the advice either to Stolt to get Mr Culpeper off the vessel or advised him that the appeal in this matter was filed after the decision was handed down, together with the stay application. On my instructions, Mr Culpeper contacted Mr Ives and was advised that the appeal had been filed and an order would be sought that he not be reinstated, so we simply do not accept the statement that Mr Culpeper has taken those steps and we say that's apparent from the papers.

PN237

Mr Culpeper could have been under no misapprehension about what steps my client was proposing to take with respect to the decision so to take steps to leave the ship, we say, was simply not appropriate. Even putting that to one side, my client is being asked to recompense him for days for which has been recompensed on the basis that at the time that the matter was before you the approach of Mr Reitano on behalf of his client, and I make no criticism of Mr Reitano who is clearly acting on instructions, was that he has had no regular income, no regular flow of income, that's at 118 and 122, and he says at 107:

PN238

It will cause some ongoing obvious necessary hardship to Mr Culpeper.

PN239

Well, there was no ongoing hardship, he was in receipt of income on the day.

PN240

MR TAYLOR: Your Honour, could I deal with those two additional points Ms Zeitz raised, your Honour, if I may?

PN241

THE SENIOR DEPUTY PRESIDENT: Yes.

PN242

MR TAYLOR: Firstly, the question of this leave, on my instructions what occurred was that on concluding the fourth swing with Stolt he was paid out his leave as a lump sum and that in correspondence between Ms Zeitz's firm and my instructing solicitors the question of the back pay, which ultimately resulted in the sum that Ms Zeitz has previously indicated. The sum in the order of $3,883 was arrived at taking into account that leave payment that was paid on termination, so there's no suggestion of double payment here.

PN243

The back payment that was paid into the trust fund was calculated in the knowledge of that payment that was made, so certainly I wouldn't want anyone to be left with a view that somehow there was some double payment here. As to the no regular flow of income, we must remember that Mr Culpeper gave evidence before Senior Deputy President Drake that he had three swings, one of five weeks and two of three weeks.

PN244

It was well known to my friend and her advocate on the day, Mr Manuel, that he had this work prior to the stay application and Mr Reitano said he had a further swing, yet in those circumstances they made the concession that it was entirely appropriate, a concession which I must say is entirely appropriate, that he continue to be paid on an undertaking that ultimately if he loses his appeal he'll have to repay. We're talking about a week now until the hearing in circumstances where there is an undertaking that protects them and in circumstances where they were equally aware then, as they are now, that he had had some work which would be taken into account in the working out of the back pay which in fact is what occurred.

PN245

The suggestion that there is something new here that they weren't aware of is really to ignore that they were in fact aware of 98 per cent of these facts when the concession was made before your Honour.

PN246

THE SENIOR DEPUTY PRESIDENT: Yes. Did you wish to put anything else, Ms Zeitz?

PN247

MS ZEITZ: I don't wish to be pedantic with my friend but because he was paid out leave with respect to the back pay, I haven't worked out the calculations, we were also asked to pay him with effect from 12 January so there is an overlap there and I haven't worked out what that is because of the leave component. It comes back to our fundamental position that we have no objection to having resolved the back pay issue but we do have, as I said at the outset, an objection to ongoing payments in the circumstances that we say were advised to the Commission and didn't contain, I suppose, a complete picture, as a result of which my client made a concession.

PN248

THE SENIOR DEPUTY PRESIDENT: What do you say about the submission that Mr Reitano did put on the record that since Senior Deputy President Drake's decision Mr Culpeper had obtained a third relief swing for six weeks and hasn't had any work since then, certainly that's misleading to me?

PN249

MS ZEITZ: The implication was from our perception that the swing was over and at that stage it wasn't fully explained; had it been fully explained we may have been position to put an alternative position to you on the day but we weren't able to do so.

PN250

THE SENIOR DEPUTY PRESIDENT: Are there any further submissions?

PN251

MR TAYLOR: Your Honour, I think if I can put it this way, it doesn't appear that we need to go into evidence, although I'm obviously in Ms Zeitz' hands and your hands about that because it appears that we are now agreed as to what the position was, namely that it was quite wrong to suggest, in fact not to suggest but to actively assert in the application before you, that Mr Culpeper had regular, ongoing work, particular emphasis on the word ongoing. Clearly it was relief work, work of a nature where he had no prior notice, this was work which is of exactly the same nature, as my friend's client was well aware before the stay application. It is true that Mr Reitano when he was before you said at PN54 that since Deputy President Drake's decision, he's been able to obtain the third relief swing for about six weeks.

PN252

THE SENIOR DEPUTY PRESIDENT: He went on and said and he hasn't had any other work since then. Please don't stop mid sentence, Mr Taylor. You'll be committing the same - - -

PN253

MR TAYLOR: I wanted to deal with both. There were two errors.

PN254

THE SENIOR DEPUTY PRESIDENT: Okay, so long as you pause and come back to those other words.

PN255

MR TAYLOR: Of course, I wanted to say there were two errors, or maybe three errors there. Firstly, it was actually a fourth relief swing, not a third but that was evidence that was available before Senior Deputy President Drake, there had been three before.

PN256

Secondly, it wasn't since Senior Deputy President Drake's decision. What he should have said, and I'm sure he meant was, since the evidence before Senior Deputy President Drake. It should have said, I understand that since the evidence before Senior Deputy President Drake he has been able to obtain a fourth relief swing for a period of about six weeks. Then he said inaccurately, and I concede that, that he hasn't had any other work since then and it would have been accurate to say and he's got no certainty of any work after then.

PN257

THE SENIOR DEPUTY PRESIDENT: But he didn't.

PN258

MR TAYLOR: No, he didn't say that your Honour.

PN259

THE SENIOR DEPUTY PRESIDENT: He didn't. We can all say what he should have said and where he was wrong but you can't just say and he should have said.

PN260

MR TAYLOR: No. I'm saying that if he'd been putting it - - -

PN261

THE SENIOR DEPUTY PRESIDENT: Accurately, that's the context in which he would have put it, yes.

PN262

MR TAYLOR: Yes, and we would say - - -

PN263

THE SENIOR DEPUTY PRESIDENT: But he didn't.

PN264

MR TAYLOR: I accept that, your Honour, I accept that. We would say ultimately your Honour that it would have made no difference. It was no different to what was occurring before, that this applicant at first instance and the respondent on appeal had had the benefit of relief work and this was just one more example of that relief work which is by its nature not ongoing. It's true casual work with a few days notice. You don't know precisely when it's going to finish and he was in the right position to have to come off the boat in nature of her Honour's order. If he'd stayed on the boat on the 7th, on my instructions, he would have had no certainty of being able to get off the boat by the 12th. That was the only opportunity he had prior to the 12th to have certainty.

PN265

The fact that Mr Reitano put it in the way he did we say ultimately wouldn't have changed either, the approach that my friends would have taken in making the concession and wouldn't have changed your Honour's approach, that provided Mr Culpeper was prepared to give the undertaking which he did to repay any amounts, there was no reason why, in circumstances where the only work he had was true casual work, with no likelihood or certainty of further work, that he would be able to be put on frozen leave on the basis that your Honour made. To say that Mr Reitano didn't put it precisely correctly is true. To say that Mr Culpeper, through Mr Reitano, deliberately misled or was actively dishonest is wrong and there's no basis to put that.

PN266

Ultimately, of course, the application for a stay is an application for discretionary relief with Mr Culpeper prima facie being entitled to the benefits of the order and in circumstances where he was given the undertaking he was and in circumstances where he did not have any certainty of ongoing work, there was good reason for your Honour to make the order and good reason for that order to be maintained for the short period left before this proceeding concludes. One thing I would certainly want to be careful about, so that your Honour understands, on my instructions, there was no basis to infer that Mr Culpeper gave Mr Reitano the wrong story so that Mr Reitano could give it to you. It is not clear to me exactly why Mr Reitano put it in the way he did but certainly on my instructions, not on the basis of anything Mr Culpeper said. If the purpose of this application is to try and inferentially attack my client's credibility, we'd say that your Honour wouldn't take that as something that would arise out of anything done in these proceedings.

PN267

Your Honour there is no need for this application. It didn't need to be brought and we say your Honour would dismiss the application at this stage, given the nature of the agreed position of the facts that we've put before you, your Honour.

PN268

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Zeitz, did you wish to put anything in response to what's been put by Mr Taylor?

PN269

MS ZEITZ: Your Honour we simply say this. If you look at document B of the subpoenaed documents, which is the short form of the pay records, that sets out that, with the exception of the month of September and part of August last year, it would appear if you look at the column pay date that Mr Culpeper has been receiving fortnightly payments with reasonable regularity through that period, so that over a period of some 40 odd weeks he's received income, I think about for 34 of those weeks but in any event, the document speaks for itself and it appears also that from what my friend has put, Mr Culpeper has taken steps to leave the ship on 7 January.

PN270

We don't make any comment on the reasons he has taken those steps and to that extent I don't rely on 19(c) and we simply say that from what has been put by Mr Taylor this morning, Mr Culpeper, knowing that the matter was under appeal, nevertheless elected to leave the ship, they say to comply with the order of Senior Deputy President Drake, we say it's for different reasons. Whatever it may be, it was at his initiative and that issue didn't have a chance to be properly aired before you on 6 January.

PN271

MR TAYLOR: Your Honour, sorry to keep doing this in bits. My friend I think accurately notes that Mr Culpeper received no pay, looking at this, certainly no pay up till April, no pay between 8 August and 3 October, no pay between 1 November and 14 December. As I said before, the nature of the swings and the amount of work he was doing was known to my friend in the evidence he gave before Senior Deputy President Drake. I can take your Honour to it ultimately but he gave the length of each swing and the dates of each swing in rough order of five weeks in March, three weeks in June, three weeks in September and give or take a day, that evidence was spot on, on the basis of these records.

PN272

As to why he came off the ship, your Honour, it seems to me my friend wants your Honour to draw an inference in the absence of evidence, contrary to what are my instructions of what actually occurred and we say that wouldn't be appropriate. What occurred was that her Honour made orders that he be reinstated on 12 January and in those circumstances he was advised that he needed to be available on 12 January and that advice was given prior to the stay hearing and arrangements were made for him to come off the boat.

PN273

There's nothing adverse to be inferred from that. To the contrary what's to be inferred is that he was doing what was necessary to comply with what may well turn out to be the case. He wasn't in the position or the luxury as some would be on land, to await the outcomes. Steps had to be taken to find a relief for him so he could get off the boat and someone else could get on and those steps were taken prior to the 12th necessarily and it was entirely appropriate for him to do that and you wouldn't draw any adverse inference from the fact that he did that.

PN274

THE SENIOR DEPUTY PRESIDENT: No further submissions?

PN275

MS ZEITZ: No, your Honour.

PN276

MR TAYLOR: No, your Honour.

PN277

THE SENIOR DEPUTY PRESIDENT: Thank you for those submissions and I'll reserve my decision which will be handed down shortly, in the next 24 hours hopefully. I will make it clear, although Ms Zeitz is not pressing them, that paragraph 19(c) of Ms Oberdan's affidavit will not be admitted into evidence. The Commission stands adjourned.

ADJOURNED INDEFINITELY [10.33am]